IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-60294
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ISAAC ROBERT GERKEN,
Defendant-Appellant.
--------------------
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 5:01-CR-15-2-BrS
--------------------
January 29, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Isaac Robert Gerken appeals his guilty-plea conviction and
sentence for armed bank robbery and for using a gun during the
commission of the robbery, in violation of 18 U.S.C. §§ 2113(a)
and 924(c). He contends that the Government breached the plea
agreement by failing to move for a downward departure for
substantial assistance with respect to the investigation and
trial of codefendant Chadwick Engle, which argument is reviewed
de novo. See United States v. Laday, 56 F.3d 24, 26 (5th Cir.
*
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that this opinion should not be published and is not precedent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.
No. 02-60294
-2-
1995). Gerken bears the burden of proving, by a preponderance of
the evidence, the underlying facts establishing a breach. Id.
Gerken has not met his burden. His assertion that the
Government breached the plea agreement by refusing to move for a
downward departure for substantial assistance as to Engle fails
because Gerken provided no assistance, substantial or otherwise,
regarding the investigation and trial of Engle. As the district
court determined, there is no evidence that Gerken repudiated his
statement exonerating Engle or presented the Government with any
information regarding Engle’s involvement in the robbery. He
thus did not qualify for the downward departure under the plain
terms of the plea agreement. Gerken’s contention that the
Government lured him into pleading guilty with a deceptive
promise is likewise unavailing; he was given the opportunity to
receive the downward departure but chose not to avail himself of
the opportunity by providing substantial assistance regarding
Engle.
Gerken alternatively contends that the district court erred
in failing to allow him to withdraw his plea for a “fair and just
reason” under FED. R. CRIM. P. 32(e). The denial of a Rule 32(e)
motion to withdraw a plea of guilty is reviewed for abuse of
discretion. United States v. Adam, 296 F.3d 327, 332 (5th Cir.
2002). The district court did not abuse its discretion in
denying Gerken’s motion, which was predicated entirely on the
contention that the Government breached the plea agreement. As
No. 02-60294
-3-
noted above, that contention is without merit. It thus can not
serve as a “fair and just reason” permitting withdrawal of the
plea under Rule 32. The district court’s judgment is AFFIRMED.