[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 11-11133 NOVEMBER 22, 2011
Non-Argument Calendar JOHN LEY
________________________ CLERK
D.C. Docket No. 6:09-cr-00210-PCF-GJK-5
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
CLARA ELLEN HANSEN,
Defendant - Appellant.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(November 22, 2011)
Before EDMONDSON, MARTIN and KRAVITCH, Circuit Judges.
PER CURIAM:
Clara Ellen Hansen appeals her sentence of thirty months in prison followed
by three years supervised release.
On April 2, 2010, Hansen entered into an agreement with the government
by which she pleaded guilty to conspiracy to manufacture and to possess with the
intent to manufacture marijuana plants in violation of 21 U.S.C. § 846. Under the
agreement, the government committed to recommend a sentence at the low end of
the applicable guideline range; a downward adjustment for acceptance of
responsibility pursuant to U.S.S.G. § 3E1.1(a); and a sentence without regard to
the statutory minimum pursuant to the safety valve provision of 18 U.S.C. §
3553(f) and U.S.S.G. § 5C1.2. The government also agreed to “consider whether
[any cooperation by Hansen] qualifie[d] as ‘substantial assistance’ in accordance
with the policy of the United States Attorney for the Middle District of Florida”
warranting a recommendation of additional downward departure under U.S.S.G. §
5K1.1. The agreement further provided that Hansen would not challenge the
determination of substantial assistance by appeal or otherwise, and that she would
not appeal her sentence except under four narrow circumstances: if the sentence
exceeded the applicable guidelines range as determined by the sentencing court; if
the sentence was in excess of the statutory maximum; if the sentence violated the
Eight Amendment; or if the government appealed.
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At the time of sentencing, the government recommended downward
departures under the safety valve provision and for acceptance of responsibility.
The government also recommended a low-end sentence, but did not recommend a
downward departure based upon substantial assistance under § 5K1.1. The
prosecutor explained that “[b]ecause of [Hansen’s] role, she really wasn’t in a
position to assist us in the investigation or in the prosecution of others.” Hansen
did not ask the district court to set aside the plea agreement, nor did she request a
finding of prosecutorial bad faith for failure to file the § 5K1.1 motion. Hansen’s
attorney filed a memorandum unrelated to the plea agreement requesting
additional downward departures based upon the mitigating factors of Hansen’s
serious medical condition and age pursuant to 18 U.S.C. § 3553(a). The judge
allowed Hansen to testify as to her serious medical condition, but refused to depart
downward from the existing sentence based upon her condition or age.
Hansen appeals her sentence on two grounds. First, she argues that the plea
agreement should be set aside for bad faith and unconstitutional conduct. Second,
Hansen argues that the district court abused its discretion in refusing to depart
downward based upon Hansen’s serious medical condition. We address each
argument in turn.
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This Court enforces the terms of an appeal waiver if the defendant
knowingly and voluntarily entered into the agreement. See United States v.
Bascomb, 451 F.3d 1292, 1294–95 (11th Cir. 2006). We have found a waiver to
be knowing and voluntary if “(1) the district court specifically question[s] the
defendant about the waiver during the plea colloquy, or (2) the record clearly
shows that the defendant otherwise understood the full significance [of the
waiver].” United States v. Grinhard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005)
(quotation marks omitted). At the plea hearing, the magistrate judge explained to
Hansen the terms of her plea agreement in detail and Hansen indicated that she
understood them. In particular, the judge explained that Hansen was giving up her
right to appeal except in the limited circumstances listed above.
In an effort to circumvent the appeal waiver, Hansen argues that this Court
should set it aside, because the government breached the agreement by negotiating
it in bad faith. It is true that this Court has noted that the government must fulfill
any promise that induces a defendant to consent to a plea agreement. United
States v. Copeland, 381 F.3d 1104, 1105 (11th Cir. 2004) (citing Santobello v.
New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971)). And prosecutorial bad
faith may be a basis for setting aside a plea agreement, but a defendant must raise
the issue of prosecutorial bad faith at the sentencing hearing in order to preserve
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the issue for appeal. See United States v. Forney, 9 F.3d 1492, 1500 (11th Cir.
1993); United States v. Jones, 933 F.2d 1541, 1547 (11th Cir. 1991). As Hansen
acknowledges, Hansen did not attempt to raise the issue of bad faith or
constitutionally impermissible motive at the sentencing hearing.
Therefore, this Court reviews the district court’s proceedings for plain
error.1 United States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). Hansen
contends that it was “plain to see that the United States never had any further
intention of engaging or utilizing either Miss Hansen or the information she had
previously provided [because the government] already knew [at the time of the
plea agreement] that Miss Hansen was at the bottom rung of the ladder in [the]
conspiracy.” Furthermore, Defendant asserts that “the United States clearly knew”
at the time of the plea agreement (and presumably, therefore, the district court
should also have known) that Hansen would not receive a § 5K1.1 motion for
substantial assistance. This allegation, standing alone, does not amount to a
“substantial threshold showing” that the government’s refusal to file a substantial
assistance motion was motivated by bad faith. See United States v. McNeese, 547
1
Under the plain error standard, we will not correct an error that the defendant failed to
raise in the district court unless there is “(1) error, (2) the error is plain, (3) that affects substantial
rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” See United States v. Langford, 647 F.3d 1309, 1326 n.11 (11th Cir. 2011); see
also United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993).
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F.3d 1307, 1308 (11th Cir. 2008) (stating that given government’s discretion in
such matters, courts may review “the government's refusal to file a substantial-
assistance motion only if the defendant first makes a ‘substantial threshold
showing’ that the refusal was based upon an unconstitutional motive”).
The plea agreement required only that the government “consider” whether
Hansen’s cooperation amounted to substantial assistance. At the plea hearing,
Hansen specifically acknowledged that she was not relying on “any promises or
representations whatsoever . . . except those that [were] expressly set forth in the
written plea agreement.” In keeping with the plain language of the agreement,
defense counsel did not object to the government’s refusal to file a motion for
substantial assistance at the time of sentencing. Thus, the record reveals no basis
for doubting the government’s motives and we find no error.
Hansen’s contention that the United States violated her constitutional right
to due process of law under the Fifth Amendment by making “false promises” fails
for the same reasons. Defendant did not argue at the sentencing hearing that the
United States had deprived her of due process. Indeed, Hansen’s low-level role
and the sequence of arrests belie her argument that the government’s decision to
withhold a § 5K1.1 downward motion for substantial assistance was arbitrary or
motivated by racial or religious bias. See Wade v. United States, 504 U.S. 181,
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186 112 S. Ct. 1840, 1844 (1992) (noting possible constitutional limitations on
prosecutorial discretion). Therefore, the district court committed no error by
denying relief on this ground.
Hansen’s second assertion—that the district court abused its discretion in
refusing to depart downward based upon Hansen’s physical condition—meets
none of the four exceptions noted in the plea agreement and is therefore barred by
her appeal waiver. In any event, this Court does not review “each individual
decision made [by a district court] during the sentencing process” to depart
pursuant to the sentencing guidelines. United States v. Winingear, 422 F.3d 1241,
1245 (11th Cir. 2005). Instead, we review a district court’s sentencing decision
only to ensure that the court considered proper sentencing factors and reasonably
weighed those factors under 18 U.S.C. § 3553(a). See United States v. Irey, 612
F.3d 1160, 1189 (11th Cir. 2010). After granting Hansen an opportunity to testify
as to her serious medical condition, the district court found that no downward
departure was warranted. For these reasons, the judgment of the sentencing court
is AFFIRMED.
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