United States v. Kovac

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 3 2001
TENTH CIRCUIT
PATRICK FISHER
Clerk

UNITED STATES OF AMERICA,

Plaintiff - Appellee, No. 00-3335
v. (D. Kansas)
CHRISTOPHER D. KOVAC, (D.C. No. 00-CR-20028-CM)

Defendant - Appellant.

ORDER AND JUDGMENT *

Before KELLY and ANDERSON , Circuit Judges, and STAGG , ** District Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

This order and judgment is not binding precedent, except under the
*

doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Tom Stagg, United States District Judge for the Western
District of Louisiana, sitting by designation.
 Defendant Christopher Kovac entered a plea of guilty on charges of

attempted manufacture of methamphetamine in violation of 21 U.S.C.

§ 841(a)(1). 1
The district court sentenced Kovac to 136 months in prison,

applying a total offense level of 31 and a Criminal History Category of II under

the United States Sentencing Guidelines (“USSG”). Kovac appeals his sentence,

claiming that the district court erroneously (1) denied his motion to compel the

Government to file a substantial assistance motion under USSG §5K1.1 and 18

U.S.C. § 3553(e), (2) imposed a two-level enhancement for the possession of a

dangerous weapon under USSG §2D1.1(b)(1), and (3) refused Kovac’s request for

a horizontal downward criminal history departure under USSG §4A1.3. We

exercise jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, and affirm.

BACKGROUND

On February 18, 1999, the DEA’s Clandestine Lab Enforcement Team, led

by Officer Ralph Sorrell, executed a search warrant at Kovac’s home and found a

1
Kovac also pled guilty to the possession of a firearm while being addicted
to a controlled substance in violation of 18 U.S.C. § 922(g)(3), admitting that he
was a user of, and addicted to, methamphetamine, and that he was found in
possession of a Baretta 9mm handgun (which had been involved in interstate
commerce) at the time of his arrest. Plea Agreement at ¶ 6, Ex. A to Def.’s Pet.
to Enter Plea of Guilty and Order Entering Plea, R. Vol. I, Doc. 24. However,
Kovac does not appeal any aspect of his conviction or sentence on the firearm
possession offense.

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methamphetamine lab. The lab was located primarily in the kitchen area of

Kovac’s residence, but there were also three or four anhydrous ammonia tanks

found in a basement bunker and in the detached garage. Kovac admitted that the

lab was his and that he was using anhydrous ammonia to manufacture

methamphetamine. 2

Prior to the search, Officer Sorrell asked Kovac if there were any weapons

in the home and Kovac admitted that there was an explosive device or “bomb” in

the attic. The attic of Kovac’s residence was divided into two rooms, a bedroom

and a storage area. The entrance to the storage area was through the bedroom, via

a door located just to the left of the bed. The bomb was found just inside this

door, about one step away from the bed. Kovac claimed that the bomb was

manufactured by a friend who intended to throw it into someone’s car; but he

later changed his story, stating that the friend intended to throw the bomb into a

house.

There was a bottle of rifle reloading powder next to the bomb. When

questioned by Officer Sorrell, Kovac admitted that the reloading powder was his,

claiming “that he was going to do some reloading but never got around to it.” Tr.

On the same day, DEA officers stopped another individual who was seen
2

leaving Kovac’s residence and who was found to be in possession of
methamphetamine. The man indicated that he had purchased the
methamphetamine at the Kovac residence, and that he purchased drugs at that
residence on at least nine different occasions.

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of Sentencing Hr’g at 27, R. Vol. II, Doc. 52. Officer Sorrell testified that after

he pointed out that the reloading powder was the same kind used in the bomb,

Kovac “kind of hung his head for a second and said that [his friend] had saw [sic]

him with that [sic] and had borrowed it from him to make this explosive device.”

Id. at 28. During the search the officers also found a “trip-light” system that was

apparently designed to let occupants know when someone was approaching the

front of the house. On the outside of the house there was a motion sensor or an

electric eye that was triggered if anyone approached. This motion sensor was

connected to a spotlight in the attic bedroom that would turn on and shine directly

on the bed.

Kovac was arrested and charged in a seven-count Indictment alleging

various drug and firearm offenses. On May 15, 2000, Kovac pled guilty on two

counts, including the attempted manufacture of more than 50 grams of

methamphetamine (Count 2). The parties entered into a plea agreement stating, in

relevant part, as follows:

The government agrees to advise the sentencing court prior to
sentencing of the nature and extent of the cooperation in this or other
investigations provided by this defendant. If, in the sole opinion of
the United States Attorney’s office, the defendant’s cooperation
amounts to substantial assistance, the government will file a motion,
pursuant to Section 5K1.1 Sentencing Guidelines [sic] and Title 18,
United States Code, Section 3553(e), to depart downward from the
defendant’s applicable guideline range.

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Plea Agreement at ¶ 2(e), Ex. A to Def.’s Pet. to Enter Plea of Guilty and Order

Entering Plea, R. Vol. I, Doc. 24 (emphasis added).

Thereafter, Officer Sorrell interviewed Kovac, in the presence of his

attorney, at the Corrections Corporation of America facility at Leavenworth

Kansas, in an effort to determine whether he could provide substantial assistance.

Lawyers in the United States Attorneys Office then conferred with Officer

Sorrell about the interview and reviewed the statement provided by Kovac. After

doing so, the United States Attorneys Office determined that the information

provided by Kovac was neither new nor useful to the Government. That office

also took into account Officer Sorrell’s statements that he did not believe that

Kovac was entirely truthful during the interview, specifically referring to

Kovac’s refusal to accept responsibility for the bomb. Based on the information

obtained from Officer Sorrell’s interview with Kovac, the United States

Attorneys Office determined that a substantial assistance motion was not

warranted.

Kovac’s sentencing hearing started on October 2, 2000, but was continued

until October 11, 2000. During the October 2 portion of the hearing, Kovac’s

attorney attempted to question Officer Sorrell about his meeting with Kovac and

whether Kovac provided substantial assistance. The Government objected,

asserting that such questioning was irrelevant because the Government had not

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filed a §5K1.1 motion, having determined that such a motion was unwarranted.

The district court agreed and sustained the Government’s objection. When the

sentencing hearing resumed on October 11, however, Kovac submitted a motion

to compel the Government to file a substantial assistance motion, claiming that

the Government’s refusal constituted bad faith, in violation of the plea

agreement. Def.’s Suggestions in Supp. of Req. to Compel Gov’t to File §5K1.1

Mot. at 3, R. Vol. I, Doc. 41. The district court denied Kovac’s motion, finding

that “the Government has complied with that part of the agreement and there’s no

showing of bad faith based on the evidence that was presented to the court.” Tr.

of Sentencing Hr’g at 110.

In sentencing Kovac, the district court applied a two-level enhancement

under §2D1.1(b)(1), finding that Kovac possessed a dangerous weapon (i.e., the

bomb) in connection with his illegal drug manufacturing activities. Kovac

objected to this enhancement, asserting that it was clearly improbable that the

bomb was connected with the offense. Def.’s Sentencing Mem. at 1, R. Vol. I,

Doc. 30 (citing USSG §2D1.1, Comment (n.3)). In response to Kovac’s

objection, the Government called Officer Sorrell to testify at the sentencing

hearing. Officer Sorrell testified that he considered the bomb to be a dangerous

weapon, and that based on his experience in investigating over 300

methamphetamine lab cases the bomb was possessed in connection with Kovac’s

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illegal drug manufacturing operation. Specifically, Officer Sorrell concluded

that together with the warning devices found on the premises, the bomb was

apparently intended as a means of destroying evidence in the event a police raid

on the lab appeared imminent. Tr. of Sentencing Hr’g at 30-33. The district

court overruled Kovac’s objection and applied the two-level enhancement. Id. at

104-05.

Finally, Kovac objected to the Presentence Investigation Report’s

(“PSR”) “criminal history” calculation, which assessed three criminal history

points and placed him within Category II of the Sentencing Table, rather than

Category I. The PSR assessed two criminal history points for Kovac’s February

8, 1990, conviction for Driving Under the Influence of Alcohol, Transporting an

Open Container and Providing False Information to a Law Enforcement Officer,

and one criminal history point based on Kovac’s June 15, 1992, conviction for

Disorderly Conduct. PSR at 8-12. Kovac argued that the PSR over-represented

his criminal history by considering the 1990 conviction, which was almost ten

years old at the time he committed the offenses in this case, and sought a

horizontal downward departure under USSG §4A1.3. Tr. of Sentencing Hr’g at

10-11. Although the district court did not specifically discuss Kovac’s objection

to the PSR’s criminal history recommendation during its ruling at the sentencing

hearing, it heard argument on this objection and expressly accepted the PSR’s

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calculations, sentencing Kovac in accordance with Category II of the Sentencing

Table. Tr. of Sentencing Hr’g at 119; Judgment in a Criminal Case at 8, R. Vol.

I, Doc. 43.

DISCUSSION

In general, “[w]e review the district court’s legal interpretation and

application of the guidelines de novo and review the court’s factual findings for

clear error, giving due deference to the court’s application of the guidelines to

the facts.” United States v. Henry , 164 F.3d 1304, 1310 (10th Cir. 1999). Under

this standard, “we will not reverse the district court unless the court’s finding

was without factual support in the record, or if after reviewing all the evidence

we are left with the definite and firm conviction that a mistake has been made.”

United States v. Beaulieu , 893 F.2d 1177, 1182 (10th Cir. 1990).

A. Substantial Assistance Motion

Kovac’s first contention on appeal is that the district court improperly

denied his motion to compel the Government to file a substantial assistance

motion under USSG §5K1.1 and 18 U.S.C. § 3553(e). As indicated above,

Kovac contends that the Government violated its obligation under the plea

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agreement because its “refusal to file a 5K motion [was] in bad faith or . . .

irrational.” Appellant’s Opening Br. at 11.

Section 5K1.1 of the Sentencing Guidelines permits a sentencing court to

depart downward from the applicable guideline range “[u]pon motion of the

government stating that the defendant has provided substantial assistance in the

investigation or prosecution of another person who has committed an offense.”

18 U.S.C. § 3553(e) similarly allows a district court, upon a motion by the

government, “to impose a sentence below a level established by statute as

minimum sentence so as to reflect a defendant’s substantial assistance in the

investigation or prosecution of another person who has committed an offense.”

Under both §5K1.1 and § 3553(e), “[t]he government’s motion is ‘an

unequivocal condition precedent . . . to a downward departure by the district

court, limiting the court’s authority and giving the government ‘a power, not a

duty, to file a [§5K1.1] motion when a defendant has substantially assisted.’”

United States v. Cerrato-Reyes , 176 F.3d 1253, 1264 (10th Cir. 1999) (quoting

United States v. Lee , 989 F.2d 377, 379 (10th Cir. 1993) and Wade v. United

States , 504 U.S. 181, 185 (1992)). 3
A prosecutor is granted the sole discretion to

decide whether or not to file a substantial assistance motion on the defendant’s

Although Cerrato-Reyes involved claims under §5K1.1, and not § 3553(e),
3

the analysis is the same under both provisions. United States v. Duncan, 242 F.3d
940, 944 n. 5 (10th Cir. 2001).

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behalf. United States v. Courtois , 131 F.3d 937, 938 (10th Cir. 1997). See also

United States v. Massey , 997 F.2d 823, 824 (10th Cir. 1993) (“Congress wisely

or unwisely left the matter of substantial assistance to the prosecutor”). With

few exceptions, the prosecutor’s exercise of such discretion is not subject to

review by the district courts. Courtois , 131 F.3d at 938.

One exception allows a district court to review the government’s

discretionary refusal to file a substantial assistance motion if the defendant

makes a “substantial threshold showing” that such refusal was unconstitutional,

either because it was based on an unconstitutional motive, such as the

defendant’s race or religion, or because it was not rationally related to any

legitimate governmental objective. Wade , 504 U.S. at 185-86. See also United

States v. Duncan , 242 F.3d 940, 947 (10th Cir. 2001). In the proceedings below,

Kovac did not assert any constitutional challenges to the Government’s

discretionary refusal to file a substantial assistance motion on his behalf, and

thus we do not consider the applicability of this exception on this appeal. 4

4
For the first time on appeal Kovac attempts to raise a constitutional
challenge, asserting that the Government’s refusal to file a substantial assistance
motion was not rationally related to any legitimate governmental end, and relying
on Duncan, which was decided during the pendency of this appeal. Ordinarily,
we will not consider an issue on appeal that was not raised below. Walker v.
Mather, 959 F.2d 894, 896 (10th Cir. 1992). Although we have the discretion to
consider new arguments based on “changes in the law arising during the pendency
of the appeal,” Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1222 (10th Cir.
(continued...)

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Another exception allows the district court to step in “if ‘the refusal violates an

agreement with the government.’” Cerrato-Reyes , 176 F.3d at 1264 (quoting

Lee , 989 F.2d at 379)). It is this exception which Kovac invokes.

The question of whether or not the government has breached a plea

agreement is a question of law which we review de novo . Courtois , 131 F.3d at

938. Without question, the plea agreement here does not expressly obligate the

Government to file a substantial assistance motion. 5
Indeed, Kovac does not

4
(...continued)
1996), we decline to exercise such discretion in this case because (i) the standard
relied upon by Kovac, and recognized by Duncan, was articulated through
Wade as early as 1992, (ii) there is no evidence in the record to support Kovac’s
claims that the government’s decision was irrational, and (iii) Kovac made no
showing, much less a “substantial threshold showing,” that the Government’s
discretionary refusal was unconstitutional. Indeed, Kovac’s only claim on appeal
is that the Government’s discretionary refusal in this case did not further the
legitimate governmental interests specifically articulated in Duncan, but in that
case we neither purported to provide an exhaustive list of legitimate governmental
ends, nor suggested in any way that the ends specifically articulated therein were
the only ones the government could ever rely upon.
5
We apply general principles of contract law when defining the
government’s obligations under a plea agreement, looking to the express language
and construing any ambiguities against the government as drafter. United States
v. Brye, 146 F.3d 1207, 1210 (10th Cir. 1998). As with all contracts, we interpret
plea agreements by giving effect to their plain and unambiguous language, giving
due consideration to a defendant’s reasonable understandings at the time. United
States v. Bunner, 134 F.3d 1000, 1003 (10th Cir. 1998). As quoted above, the
plain language of Section 2(e) of the plea agreement in this case merely left open
only the possibility of a substantial assistance motion. It did not obligate the
Government to file a motion, “expressly leaving the decision to file such a motion
in the sole [opinion] of the government.” Courtois, 131 F.3d at 939. While the
plea agreement could have limited the discretion otherwise granted to the
(continued...)

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assert that the Government was expressly obligated to file a substantial

assistance motion on his behalf under the plea agreement. Both below and on

appeal, Kovac asserts only that by entering into the plea agreement, a contract,

the Government implicitly agreed to act in good faith, limiting its discretion and

subjecting its decision-making process to review for “bad faith.”

We recognize that as a general rule of contract law there is an implied

obligation of good faith and fair dealing in all contracts. See Concrete Spec. v.

H.C. Smith Constr. Co. , 423 F.2d 670, 672 (10th Cir. 1970) (citing 5 S.

Williston, Contracts § 670, at 159 (3rd ed. 1961)). We also recognize the general

rule that plea agreements are to be enforced and construed in accordance with

traditional contract principles. United States v. Thompson , 237 F.3d 1258, 1260-

61 (10th Cir. 2001). Nonetheless, there is a split of authority among the federal

circuits regarding whether or not the government’s discretionary refusal to file a

substantial assistance motion can be reviewed for bad faith under plea

agreements which expressly grant the government sole discretion over a

defendant’s entitlement to such a motion. The majority of the federal circuits

addressing the issue reject a district court’s review of the prosecutor’s

discretionary refusal of a substantial assistance motion for bad faith in such

(...continued)
5

government under §5K1.1 and § 3553(e), Lee, 989 F.2d at 380, it clearly did not
do so.

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cases, 6 while a minority hold that the implied obligation of good faith and fair

dealing applies to such plea agreements, allowing the district court to review a

prosecutor’s discretionary refusal for bad faith. 7

6
See United States v. Anderholt, 87 F.3d 740, 742 (5th Cir. 1996) (“If the
Government retains sole discretion to file the motion [under a plea agreement], its
refusal to file is reviewable only for unconstitutional motives.”); United States v.
Forney, 9 F.3d 1492, 1502 (11th Cir. 1993) (holding that where government
retains discretion to file substantial assistance motion in plea agreement “courts
are precluded from intruding into prosecutorial discretion” unless there is “an
allegation and a substantial showing that the prosecution refused to file a
substantial assistance motion because of a constitutionally impermissible
motivation”); United States v. Romsey, 975 F.2d 556, 558 (8th Cir. 1992)
(holding that where defendant’s “carefully-worded plea agreement preserved the
government’s discretion not to file a substantial assistance motion” defendant
must make a “substantial threshold showing that the prosecutor’s refusal . . . was
based on a constitutionally impermissible motive”); United States v. Burrell, 963
F.2d 976, 984 (7th Cir. 1992) (stating that where government retains discretion to
file substantial assistance motion under plea agreement government is not
required to file a motion and its discretionary refusal can be reviewed only for
constitutional violation, not “arbitrariness”); United States v. Sims, No. 92-5116,
1992 WL 190909, at *3 (4th Cir. Aug. 11, 1992) (holding that where plea
agreement leaves discretion with the government, “the government made no
promise to move for the departure based on substantial assistance, and, absent
such a promise, the government has discretion, within constitutional limits,
whether to do so”).

United States v. Issac, 141 F.3d 477, 483 (3rd Cir. 1998) (applying basic
7

contract principles and holding that “a district court is empowered to examine for
‘good faith’ a prosecutor’s refusal to file a §5K1.1 motion pursuant to a plea
agreement that gives the prosecutor ‘sole discretion’ to determine whether the
defendant’s assistance was substantial”); United States v. Jones, 58 F.3d 688,
690-91 (D.C. Cir. 1995) (holding that although plea agreement gives government
sole discretion in determining whether or not to file a substantial assistance
motion, the plea agreement “provides additional protection” and, “[l]ike all
contracts, it includes an implied obligation of good faith and fair dealing”);
United State v. Rexach, 896 F.2d 710, 714 (2nd Cir. 1990) (stating that implied
(continued...)

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 Similarly, the decisions within this circuit are not consistent. Some cases

hold that “the district court’s role is limited to deciding whether the government

has made its determination [not to file the motion] in good faith.” United States

v. Vargas , 925 F.2d 1260, 1266 (10th Cir. 1991). 8
Other cases hold that where

the government retains its sole discretion under the express terms of the plea

agreement it retains the powers otherwise granted it under §5K1.1 and § 3553(e),

and thus its discretionary refusal to file a motion is reviewable only for

constitutional error, as articulated in Wade . See United States v. Hawley , 93

F.3d 682, 691 (10th Cir. 1996) (holding that where plea agreement leaves

decision within the “sole and exclusive discretion” of the government defendant

must demonstrate that government acted with unconstitutional motive and court

lacks jurisdiction to review government’s decision where unconstitutional

7
(...continued)
covenant of good faith and fair dealing principles apply to plea agreements
retaining government’s sole discretion over substantial assistance motions), aff’d
in dicta, United States v. Ming-He, 94 F.3d 782, 787 (2nd Cir. 1996).

See also Cerrato-Reyes, 176 F.3d at 1264; Lee, 989 F.2d at 380; United
8

States v. Crocklin, No. 98-3186, 1999 WL 41074, at *1 (10th Cir. Feb. 1, 1999);
United States v. Thompson, No. 97-3172, 1998 WL 544313, at *2 (10th Cir. Aug.
26, 1998); United States v. Walton, No. 97-3138, 1998 WL 544310, at *2 (10th
Cir. 1998).

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motives have not been alleged, or the defendant has made only “generalized

allegations of improper motive”). 9

Because we believe that the latter view more accurately reflects the

policies announced in Wade limiting our intrusion into prosecutorial discretion

over substantial assistance motions, 10
as well as the policies and principles

announced in other Supreme Court decisions generally limiting our intrusion into

a district court’s application of the Sentencing Guidelines, we adopt that view

and hold that where a plea agreement expressly grants the government sole

discretion over the filing of a substantial assistance motion, a prosecutor’s

discretionary refusal to file such a motion may not be reviewed for bad faith.

Such plea agreements merely reaffirm the power otherwise granted the

prosecutor under §5K1.1 and § 3553(e); they do not give defendants any greater

rights, nor do they give the courts a greater power of review. Based on the fact

that Kovac challenged the Government’s discretionary refusal to file the

See also United States v. Berger, 251 F.3d 894, 910 (10th Cir. 2001);
9

United States v. Webb, No. 99-5189, 2000 WL 1596108, at *2 (10th Cir. Oct. 26,
2000).

Those cases within this circuit reaching the opposite conclusion and
10

allowing district courts to review the government’s discretionary refusal to file
substantial assistance motions under a plea agreement for “bad faith” do so in
reliance upon the holding first articulated in Vargas. See, e.g., Lee, 989 F.2d at
380 (citing United States v. Robinson, 978 F.2d 1554, 1569 (10th Cir. 1992)
(citing Vargas, 925 F.2d at 1266)). However, Vargas was decided prior to Wade,
and these later cases simply do not recognize the ways in which Wade has altered
the landscape in this area of the law.

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substantial assistance motion below solely on the grounds of alleged bad faith,

his claim is not subject to any further review on appeal.

Even assuming arguendo , however, that the Government’s discretionary

refusal could be reviewed for bad faith under traditional contract principles, we

would still affirm the denial of Kovac’s motion, and we would do so regardless

of which standard applies to such claims. 11
Kovac essentially claims that

because he met with Officer Sorrell in Leavenworth, Kansas, and provided a

statement, he necessarily provided substantial assistance. He asserts that the

government acted in bad faith, and abused its discretion, by refusing to file a

substantial assistance motion on his behalf merely because they believed that the

information he provided was not useful and they doubted his veracity. 12
The

11
We have never fully articulated the standard for “bad faith” in this
context. Some circuits hold (i) that a defendant is required to make a prima facie
showing of bad faith, (ii) that the government must then come forth with a good
faith explanation for its decision, and (iii) that the defendant then bears the
ultimate burden of proving that the government’s reasons were inadequate or
merely pretextual. See, e.g., Issac, 141 F.3d at 484 (citing United States v.
Imtiaz, 81 F.3d 262, 264 (2nd Cir. 1996)) (adopting a standard of proof and
persuasion for cases involving claims that the government refused substantial
assistance motions in bad faith). We need not accept or reject any one standard at
this time, however, because regardless of what possible standard may be applied,
Kovac presented absolutely no compelling evidence of bad faith, either below or
on appeal.
12
On appeal, Kovac asserts that the government cannot refuse a substantial
assistance motion merely because the government found the information provided
to be useless to its investigation, relying primarily on an analogy to 18 U.S.C.
§ 3553(f)(5), a provision which expressly renders the usefulness of the
(continued...)

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district court found, however, that there was “no showing of bad faith” in this

case, Tr. of Sentencing Hr’g at 110, and this finding is not clearly erroneous.

See Lee , 989 F.2d at 380 (stating that question of whether government acted in

good faith is factual one reviewed for clear error).

Keeping in mind that a district court must give “[s]ubstantial weight . . . to

the government’s evaluation of the extent of the defendant’s assistance,” USSG

§5K1.1, App. Note 3, a defendant challenging the government’s discretionary

refusal to file a substantial assistance motion on the basis of “bad faith” has a

heavy burden, and must demonstrate by a preponderance of evidence that the

12
(...continued)
information provided by a defendant irrelevant when a district court is assessing
whether or not to depart from the Sentencing Guidelines in favor of a lower
statutory minimum sentence. Kovac’s analogy is flawed, however, because
§5K1.1 and § 3553(e) simply do not contain the language Kovac relies upon from
§ 3553(f), and § 3553(f) and its counterpart USSG §5C1.2 are fundamentally
distinct provisions that have absolutely no application in this case. See United
States v. Acosta-Olivas, 71 F.3d 375, 379 (10th Cir. 1995) (“Section 5K1.1 [and
§ 3553(e)] concerning substantial assistance operate[] very differently from
§5C1.2 [and § 3553(f)(5)].”). See also United States v. Maduka, 104 F.3d 891,
895 (6th Cir. 1997) (observing that “sections 5C1.2 and 5K1.1 perform distinct
functions”).

Kovac further asserts that the government cannot refuse a substantial
assistance motion based on the perceived untruthfulness of the defendant,
asserting that “there is no requirement in the 5K clause concerning truthfulness.”
Appellant’s Opening Br. at 12. This argument defies common sense and the
essential purpose of §5K1.1 because a defendant can in no circumstances be said
to provide “assistance” to the government, much less “substantial assistance,” if
he is not providing truthful information. There is nothing unreasonable in the
government considering the perceived veracity of the defendant when deciding
whether or not to file a substantial assistance motion on his or her behalf.

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government acted in a patently unreasonable manner, entirely disregarding the

assistance provided with the intent of purposely denying him or her the benefit of

the substantial assistance motion. 13
Kovac did not meet this burden. His claims,

both below and on appeal, amount to nothing more than blanket assertions and

conclusory allegations that the Government acted inappropriately without any

evidence whatsoever of illicit motive or an abuse of discretion by the United

States Attorneys Office. We are not persuaded by Kovac’s baseless allegations

of bad faith and thus, even if the Government’s discretionary refusal could be

reviewed for bad faith, we would still affirm.

B. Dangerous Weapon Enhancement

Kovac’s second contention on appeal is that “he should not have been

assessed a two-level enhancement under §2D1.1(b)(1) of the Guidelines for

13
See generally Issac, 141 F.3d at 484 (concluding that defendant must
show that government did not base its decision on “an honest evaluation of the
assistance provided,” but inappropriately considered factors “extraneous to the
decision”); United States v. Doe, 170 F.3d 223, 225-26 (1st Cir. 1999)
(explaining that a claim of bad faith requires more than a showing of mere
unreasonableness or arbitrariness); Black’s Law Dictionary 127 (5th ed. 1979)
(stating that “bad faith” is “not simply bad judgment or negligence,” but “implies
the conscious doing of a wrong because of dishonest purpose or moral
obliquity”). See also Lampkin v. Int’l Union, United Auto., Aerospace and Agric.
Implement Workers of Am. (UAW), 154 F.3d 1136, 1144 (10th Cir. 1998)
(stating that in claim that union breached duty of fair representation, bad faith
requires a showing that the challenged activity was “so far removed from
reasonable as to be wholly irrational or arbitrary”).

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possession of a dangerous weapon in connection with a drug offense because it

was clearly improbable that the weapon in question [i.e., the bomb] was

connected with the offense.” Appellant’s Opening Br. at 6. The district court

found that the Government sufficiently proved that Kovac possessed the bomb

during the commission of the manufacturing crime to which he pled guilty, and

overruled Kovac’s objection. Tr. of Sentencing Hr’g at 105. This finding is not

clearly erroneous.

USSG §2D1.1(b)(1) provides for a two-level enhancement if a “dangerous

weapon (including a firearm) was possessed” during the commission of the

offense. “The adjustment should be applied if the weapon was present, unless it

is clearly improbable that the weapon was connected with the offense.” USSG

§2D1.1, Comment (n. 3). “The government has the burden to prove by a

preponderance of the evidence that a weapon was possessed in physical

proximity to the offense.” United States v. Contreras , 59 F.3d 1038, 1040 (10th

Cir. 1995). To meet this burden, the government is required to “present evidence

demonstrating ‘that a temporal and spatial relation existed between the weapon,

the drug trafficking activity, and the defendant.’” United States v. Lang , 81 F.3d

955, 964 (10th Cir. 1996) (quoting United States v. Robertson , 45 F.3d 1423,

1449 (10th Cir. 1995)) (further quotations omitted). Once the government meets

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its burden, the onus is on the defendant to demonstrate that the two-level

enhancement should not apply. Contreras , 59 F.3d at 1040.

“The government meets its initial burden when it shows that a weapon was

located near the general location where at least part of a drug [offense]

occurred.” United States v. Vaziri , 164 F.3d 556, 568 (10th Cir. 1999). It is

undisputed that Kovac owned, constructed and operated the lab at his residence,

and the Government presented evidence that Kovac knew there was a bomb in

the attic, as well as evidence connecting the bomb to the drug activity occurring

on his premises. 14

Kovac’s rejoinder is that despite this evidence, it was “clearly improbable”

that the bomb was actually connected to the manufacturing offense. Kovac

argues that because manufacturing related activity occurred only in the kitchen,

the basement and the detached garage, areas of the residence “far removed” from

the attic where the bomb was actually found, there was an insufficient “spatial”

connection between the weapon and the manufacturing charge. Appellant’s

Opening Br. at 8; Appellant’s Reply Br. at 2. It is undisputed, however, that the

attempted manufacture occurred in Kovac’s residence, and the presence of the

bomb in that same residence is enough to support the enhancement if the

14
Specifically, Officer Sorrell testified that in his professional opinion the
bomb, together with the warning devices found on Kovac’s premises, were
apparently intended as a means of destroying evidence in the event that a police
raid on Kovac’s lab appeared imminent.

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residence was generally used in the furtherance of the alleged drug offense. See

United States v. Dickerson , 195 F.3d 1183, 1188 (10th Cir. 1999) (concluding

that enhancement proper because although firearms were not found in same room

as drugs, they were found in “close proximity” to the drugs and the entire house

was utilized for drug activity); 15
Contreras , 59 F.3d at 1039 (holding that

although firearm was found in attached garage, twenty five feet from drugs in

living room, enhancement proper because entire residence was used as a “stash

house” for drugs); United States v. Earls , 42 F.3d 1321, 1326 (10th Cir. 1994)

(upholding enhancement where residence generally “used in furtherance of the

drug business”). The record indicates that Kovac’s drug activity did not occur in

a small, isolated part of his residence, but extended throughout the house and

even into adjacent buildings. See Tr. of Sentencing Hr’g at 15-20; Reply Brief at

2 (“There was activity in the kitchen . . . , in the basement . . . and in the

detached garage). As we recognized in United States v. Flores , 149 F.3d 1272

(10th Cir. 1998):

15
Kovac argues that Dickerson is distinguishable because the defendant in
that case was convicted of “controlling a building and making it available for use
for the purpose of illegal drug activity,” a crime that, by its very nature,
“implicated the illegal use of the entire residence.” Appellant’s Reply Br. at 1-2.
However, it was not the crime charged that was important in Dickerson, but the
fact that the crime implicated the entire residence. 195 F.3d at 188. In Kovac’s
case, although a manufacturing charge does not implicate the illegal use of an
entire residence by its very nature, there is sufficient evidence in the record
demonstrating that the entire Kovac residence was in fact used in furtherance of
his illegal manufacturing activity.

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 enhancement under §2D1.1(b)(1) is designed to reflect the increased
danger of violence when drug traffickers add firearms to the
mix. . . . Although in many cases the weapon will be involved with
some sort of illegal transaction, it is not necessary for the
Government to show that drugs and money changed hands near the
weapon; the weapon may simply serve as a potentially deadly means
of protecting the trafficker’s goods, thereby increasing the danger of
violence.

Id. at 1280 (citation omitted). Although there is no evidence that any

manufacturing actually occurred in the attic or the adjacent bedroom, there is

sufficient evidence to support the conclusion that the residence was generally

used to further Kovac’s illegal manufacturing activities, and that the bomb

served as a “potentially deadly means of protecting” Kovac’s operations from

detection by destroying evidence in the event a police raid on the lab appeared

imminent, “thereby increasing the danger of violence.” Id.

Kovac further asserts that the district court’s ruling was erroneous because

there was no evidence that he actually owned or controlled the bomb. For

purposes of §2D1.1(b)(1), however, “[p]ersonal possession of a [weapon] . . . is

not necessary.” United States v. Smith , 131 F.3d 1392, 1400 (10th Cir. 1997).

Regardless of whether or not Kovac was the technical owner of the bomb, the

evidence demonstrated that Kovac was aware that the bomb was in the attic, and

that Kovac had full access to the bomb during his illegal drug manufacturing.

See United States v. Hallum , 103 F.3d 87, 89 (10th Cir. 1996) (finding

enhancement proper where weapon was accessible to criminals while they were

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involved in drug cultivation activity). Although Kovac told Officer Sorrell that

the bomb was not his and was not intended to be used in connection with his

illegal manufacturing operation, Officer Sorrell testified that he did not believe

Kovac, and the district court apparently found Officer Sorrell’s testimony to be

more credible than the statements made by Kovac at the time of his arrest (or

thereafter). We will not disturb such determinations on appeal. United States v.

Caro , 248 F.3d 1240, 1243 (10th Cir. 2001). 16

In light of the evidence presented at the sentencing hearing, the district

court did not clearly err in finding that the Government met its burden under

§2D1.1(b)(1), and in concluding that there was a sufficient connection between

the bomb, the manufacturing activity, and Kovac to overrule Kovac’s objection

to the two-level enhancement.

16
Kovac also asserts that because the bomb “was not easily transported or
carried” like a firearm, it was not “amenable to use in drug trafficking.”
Appellant’s Opening Br. at 9. We note that while §2D1.1(b)(1) specifically
references “firearms,” it applies equally to any dangerous weapon used in the
commission of an applicable offense, regardless of whether or not the weapon is a
“mobile” weapon, such as a firearm. Moreover, although we make no judgment
about whether or not the mobility of a weapon may be relevant in cases involving
the actual transportation of drugs, we believe that because Kovac was convicted
of attempted manufacturing, a drug crime that did not necessarily involve the
actual transport or movement of drugs, the mobility or immobility of the bomb is
entirely irrelevant in this case.

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C. Criminal History Departure

Kovac’s final contention on appeal is that the district court erred in

refusing to depart downward when fixing his criminal history category under the

Sentencing Guidelines. Kovac claims that the PSR over-represented his criminal

history and asserts that a downward departure was warranted under USSG

§4A1.3. 17 However, “[i]t is established law in this circuit, and in every circuit

which has considered the jurisdictional issue, that an appellate court does not

have jurisdiction to review a district court’s discretionary refusal to depart

downward from the sentencing guidelines.” United States v. McHenry , 968 F.2d

1047, 1048 (10th Cir. 1992).

Kovac expressly acknowledges the limits on our jurisdiction and attempts

to overcome them by asserting that “the District Court did not understand its

authority to [depart]” because it did not mention the departure motion in its

ruling at sentencing, or in the judgment itself. Appellant’s Reply Br. at 6-7.

Although we will review discretionary refusals to depart where it appears from

the record that “the district court refused . . . because it erroneously interpreted

the Guidelines as depriving it of the power to depart based on the proffered

circumstances,” United States v. Barrera-Barron , 996 F.2d 244, 245 (10th Cir.

17
Section 4A1.3 allows a departure “[i]f reliable information indicates that
the criminal history category does not adequately reflect the seriousness of the
defendant’s past criminal conduct or the likelihood that the defendant will commit
other crimes. . . .”

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1993), such review is appropriate only where “the judge’s language

unambiguously states that the judge does not believe he has authority to

downward depart.” United States v. Rodriguez , 30 F.3d 1318, 1319 (10th Cir.

1994). Such unambiguous language does not exist here, and there is nothing in

the record to suggest that the district court misunderstood its authority to depart

downward under USSG §4A1.3. The district court heard argument on Kovac’s

motion and implicitly rejected it, finding “that the total offense level as modified

by the court’s ruling should be a total offense level 31, criminal history category

2.” Tr. of Sentencing Hr’g at 113. The fact that the district court did not

articulate the exact reasons for its discretionary refusal does not evidence that the

district court misunderstood its ability to depart downward. Thus, we lack

jurisdiction to consider this allegation of error.

CONCLUSION

For the foregoing reasons, we AFFIRM Kovac’s sentence.

ENTERED FOR THE COURT

Stephen H. Anderson
Circuit Judge

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