FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10009
Plaintiff-Appellant, D.C. No.
v. 3:08-cr-00887-
WICKETT D. MORRIS, MHP-1
Defendant-Appellee.
OPINION
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Argued and Submitted
January 14, 2011—San Francisco, California
Filed February 2, 2011
Before: J. Clifford Wallace, John T. Noonan, and
Barry G. Silverman, Circuit Judges.
Per Curiam Opinion
2095
UNITED STATES v. MORRIS 2097
COUNSEL
Barbara Valliere (argued), United States Department of Jus-
tice, San Francisco, California, for the plaintiff-appellant.
Paul Delano Wolf (argued), Law Offices of Paul Delano
Wolf, Oakland, California, and Lynn M. Keslar, Law Offices
of Lynn M. Keslar, Oakland, California, for the defendant-
appellee.
2098 UNITED STATES v. MORRIS
OPINION
PER CURIAM:
The United States appeals from the district court’s order
dismissing an information against Wickett Morris filed pursu-
ant to 21 U.S.C. § 851. We reverse and remand.
BACKGROUND
On December 9, 2008, a grand jury charged Morris with
possessing more than fifty grams of crack cocaine with intent
to distribute it within 1000 feet of a public housing authority,
which is prohibited by 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii),
and 860(a). On December 11, Morris was arrested.
Section 851 of Title 21 requires a United States Attorney
to file an information listing previous convictions before a
district court may enhance a sentence based on an applicable
drug felony. 21 U.S.C. § 851(a)(1). Morris had been con-
victed of a felony drug offense in 1997. In the absence of a
properly filed information, Morris would be subject to a man-
datory minimum sentence of ten years’ imprisonment. In the
event that the government filed a § 851 information listing the
1997 conviction, however, Morris would face a mandatory
minimum sentence of twenty years’ imprisonment.
At his December 18, 2008 detention hearing, the govern-
ment made an offer to Morris’s counsel, later spelled out as
follows: The government would agree not to file an informa-
tion if Morris agreed not to litigate the case, to plead guilty,
and to cooperate as a witness in the upcoming murder and
drug dealing trial of Dennis Cyrus, Jr., a leader of the gang
with which Morris was associated. After receiving the gov-
ernment’s proposal, Morris’s counsel sought and received a
delay in the detention hearing.
On January 23, 2009, the government met with Morris and
his counsel. The government reiterated its proposal. The gov-
UNITED STATES v. MORRIS 2099
ernment also discussed relocation options for Morris if he felt
endangered by cooperating. The Cyrus trial was approaching.
The government told Morris to respond by January 26, 2009.
On the deadline date, counsel requested and received an
extension until February 2, 2009.
On January 28, 2009, counsel attempted to visit Morris in
detention. Morris refused to see him. The same day, counsel
asked the government for more time because Morris wished
to hire another attorney. The government declined the request
and filed the § 851 information shortly after the February 2
deadline passed.
On March 10, 2009, the grand jury issued a superseding
indictment against Morris, which charged him and co-
defendant Cynthia Jones with violating the same statutory
provisions as before: 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii),
and 860(a). The superseding indictment also charged that
Morris and Jones had intent to distribute 50 grams or more of
crack cocaine within 1000 feet of an elementary school. The
government later filed a new information against Morris tied
to the superseding indictment alleging a prior felony drug
conviction in 1996.
The government had the option of filing an information
against Jones because of her prior drug felony conviction. The
government made an offer to Jones that mirrored the one pre-
viously made to Morris. Jones rejected the government’s
offer, and the government filed an information against her.
Jones then successfully moved the district court to strike
the information in her case. The district court held that “the
prosecutor’s actions offend due process.” The court reasoned
that the “prosecution’s tactics short-circuited the truth-finding
process” by requiring Jones to forfeit most of her rights from
the start of proceedings. The district court further concluded
that plea bargaining requires a “give-and-take” and that no
give-and-take had taken place. The government had made “an
2100 UNITED STATES v. MORRIS
offer to possibly make an offer—after defendant had forfeited
her right against self-incrimination.”
Following Jones’s lead, Morris also moved to strike the
information in his case. The court granted his motion, incor-
porating the legal analysis from its order as to Jones. The
court was “convinced that the nature of the ‘deal’ offered to
Morris was essentially indistinguishable from that of the
‘deal’ offered to Jones.”
The government now appeals from the district court’s order
striking Morris’s § 851 information.
ANALYSIS
The Standard of Review. We review due process claims de
novo. United States v. Restrepo, 930 F.2d 705, 712 (9th Cir.
1991).
[1] Due Process. In Bordenkircher v. Hayes, 434 U.S. 357
(1978), the Supreme Court held that a prosecutor’s decision
to carry out a threat made during plea discussions does not
violate the Due Process Clause. Id. at 358. The prosecutor in
Bordenkircher had offered to recommend a five-year sentence
if the accused pled guilty to a one-count indictment. If the
accused did not plead guilty, the prosecutor threatened to seek
an indictment under the state’s habitual criminal act, which
would have subjected the accused to the risk of a mandatory
life term. The Court reasoned that the prosecutor’s actions did
not offend due process because the prosecutor had “no more
than openly presented the defendant with the unpleasant alter-
natives of forgoing trial or facing charges on which he was
plainly subject to prosecution.” Id. at 365.
[2] Bordenkircher controls, and it is indistinguishable from
the instant case. As in Bordenkircher, the government gave
Morris the choice to plead guilty or face the possibility of
much greater punishment based on his prior conviction. In
UNITED STATES v. MORRIS 2101
both cases, the accused had lawyers to help them understand
the consequences of the government’s offers. See id. at 363
(“Defendants advised by competent counsel and protected by
other procedural safeguards are presumptively capable of
intelligent choice in response to prosecutorial persuasion
. . . .”). When the accused did not agree to the terms, the gov-
ernment carried out its previous threats to double the potential
sentence.
[3] Unlike Bordenkircher, the government’s offer was con-
ditioned on Morris’s testifying in another trial. But we have
repeatedly held that deals conditioned on cooperation are per-
missible. See, e.g., United States v. Gardner, 611 F.2d 770,
773 (9th Cir. 1980); see also People of the Territory of Guam
v. Fegurgur, 800 F.2d 1470, 1472 (9th Cir. 1986). The gov-
ernment premised the plea bargain on Morris giving up many
rights, including his statutory right to seek release. Relin-
quishment of such rights is an acceptable part of most plea
deals. See United States v. Navarro-Botello, 912 F.2d 318,
321 (9th Cir. 1990) (“[I]f it is not a due process violation for
a defendant to waive constitutional rights as part of a plea bar-
gain, then a defendant’s waiver of a nonconstitutional right,
such as statutory right to appeal a sentence, is also waiv-
able.”). That the government made its offer at the outset of
proceedings does not change our calculus. See United States
v. Gonzalez-Zotelo, 556 F.3d 736, 739 (9th Cir. 2009) (dis-
cussing fast-track plea agreement programs that lead to early
dispositions of cases). The government gave Morris several
weeks to consider the offer from the time it was first made to
Morris’s counsel. The timeframe is not problematic. See id.
That Morris and the government negotiated little during this
timeframe does not mean that the government deprived Mor-
ris of a protected right. See Weatherford v. Bursey, 429 U.S.
545, 561 (1977) (“there is no constitutional right to plea bar-
gain”).
[4] We recognize that Bordenkircher requires a “give-and-
take,” but this does not mean that the government must
2102 UNITED STATES v. MORRIS
engage in an extensive series of back-and-forth negotiations
for a plea offer to be valid. See 434 U.S. at 363. There is noth-
ing fundamentally wrong with the prosecution’s decision to
present its best offer up front. Accordingly, under the circum-
stances of this case, we conclude that the government did not
offend due process by extending a take it or leave it plea offer
to Morris.
CONCLUSION
For these reasons, the district court’s order dismissing the
information is REVERSED and the case is REMANDED.