United States v. Willie James Taylor, Jr.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
FEBRUARY 1, 2006
No. 05-13384 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________

D. C. Docket No. 05-00007-CR-2

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

WILLIE JAMES TAYLOR, JR.,
a.k.a. Jack Taylor,

Defendant-Appellant.

________________________

Appeal from the United States District Court
for the Southern District of Georgia
_________________________

(February 1, 2006)

Before BIRCH, BLACK and BARKETT, Circuit Judges.

PER CURIAM:

Willie James Taylor, Jr., appeals his 180-month sentence for possession of a
firearm as a convicted felon. This appeal requires us to consider whether the

government’s failure to move for downward departure pursuant to United States

Sentencing Guidelines § 5K1.1 and 18 U.S.C. § 3553(e), based on Taylor’s

cooperation, constitutes a breach of Taylor’s plea agreement. We find that it does

not and that there is no other error. We AFFIRM.

I. BACKGROUND

Pursuant to a written plea agreement, Taylor pled guilty to possession of a

firearm as a convicted felon/armed career criminal, in violation of 18 U.S.C. §§

922(g)(1), 924(e)(1). Taylor’s plea agreement provided:

That the defendant is not called upon by this agreement nor any other
to implicate any particular individual as to any particular illegal
activity, nor to “make a case” against anyone; That the defendant’s
benefits under this agreement are conditioned solely upon his
cooperation and truthfulness, and are IN NO WAY conditioned upon
the outcome of any trial, grand jury, or other proceeding;
...
If the defendant’s cooperation is completed prior to sentencing,
the government agrees to consider whether such cooperation
qualifies as “substantial assistance” pursuant to 18 U.S.C. §
3553(e) and U.S.S.G. § 5K1.1 and under the policies of the
United States Attorneys Office for the Southern District of
Georgia warrants the filing of a motion for downward departure
from the applicable sentencing guideline range and departure
below any applicable statutory mandatory minimum sentence.
If the defendant’s cooperation is completed or likely to be
completed subsequent to sentencing, the government agrees to
consider whether such cooperation qualifies as “substantial
assistance” pursuant to 18 U.S.C. § 3553(e) and Rule 35,
Fed.R.Crim.P. and under the policies of the United States

2
Attorneys Office for the Southern District of Georgia warrants
the filing of a motion for downward departure from the
applicable sentencing guideline range and departure below any
applicable statutory mandatory minimum sentence, within one
year of the imposition of the sentence.

R1-22 at 5-7.

Taylor, who was in custody following an arrest on a drug charge,

provided a statement in which he admitted to pawning a handgun. He had

obtained the handgun from an unidentified white male in exchange for crack

cocaine. Taylor’s criminal history showed that he had been convicted on

four separate occasions of a “violent felony or a serious drug offense, or

both,” including robbery, burglary, and selling cocaine, thereby qualifying

him as an armed career criminal. See 18 U.S.C. § 924(e)(1); U.S.S.G. §

4B1.4 (2004). This gave him an offense level of 33. See U.S.S.G. §

4B1.4(b)(3)(B).

He received a three-level reduction for acceptance of responsibility

pursuant to U.S.S.G. § 3E1.1(a) and (b), which resulted in a total offense

level of 30. With his criminal history level of VI, the recommended

sentencing guidelines range was 168 to 210 months. Because a sentence

imposed may not be less than any statutorily required minimum sentence

and the mandatory statutory minimum term of imprisonment for 18 U.S.C.

3
§ 924(e)(1) is 15 years (180 months), Taylor’s guidelines range became 180

to 210 months. See U.S.S.G § 5G1.1(c)(2).

Taylor made no objections to the facts as laid out in his pre-sentence

investigation report. At his sentencing hearing, his attorney asked that the

court be aware “that Mr. Taylor ha[d] been cooperating with the

Government since the entry of his guilty plea . . . that [according to the

government] he [was] not eligible for a motion for downward departure right

[then], but m[ight] be at some future time if [he] continue[d] to cooperate

and be forthright and honest with [the government].” R5 at 5. Accordingly,

Taylor’s attorney asked the court to impose the minimum possible sentence

of fifteen years. Id. The government confirmed that Taylor had been

cooperating by speaking with agents and that the government “hope[d] that

in the future, it [would] bear fruit.” Id. at 6. The court then sentenced

Taylor to 180 months imprisonment to be followed by five years of

supervised release.

On appeal, Taylor argues that his sentence should be reversed because

the government breached the plea agreement by not filing a motion for

downward departure pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1

based on his cooperation and assistance. Even though Taylor concedes that

4
the plea agreement gives the government discretion as to filing such a

motion, he asserts that the agreement specifically stated that all he had to do

was cooperate, that he did cooperate, and that the government’s reference to

its hope that the cooperation would be “fruitful” directly breached the

agreement under which his benefits were “IN NO WAY conditioned upon

the outcome of any trial, grand jury, or other proceeding.” R1-22 at 5.

II. DISCUSSION

We typically review de novo the issue of “[w]hether the government

has breached a plea agreement.” United States v. Mahique, 150 F.3d 1330,

1332 (11th Cir. 1998) (per curiam). If, however, a defendant fails to object

to the imposition of his sentence at the time of the sentencing hearing, “any

objections . . . are barred absent manifest injustice.” Id. We “equate[] the

manifest injustice inquiry with review for plain error.” Id.

At the sentencing hearing, Taylor’s attorney conceded that he

understood, based on discussions with the government, that Taylor was

ineligible for a downward departure motion at that point despite his

cooperation. Thus, Taylor now alleges breach for the first time on appeal.

Accordingly, Taylor’s objection is barred absent plain error. See id.

5
We have made clear that, even post-Booker,1 a motion from the

government is required before a district court may depart downward from

the guideline range on the basis of substantial assistance. United States v.

Crawford, 407 F.3d 1174, 1182 (11th Cir. 2005). In explaining our role

concerning review of the government’s decision not to file a substantial

assistance motion, we have reasoned that “judicial review [of the

government’s decision not to file a U.S.S.G. § 5K1.1 motion] is appropriate

when there is an allegation and a substantial showing that the prosecution

refused to file a substantial assistance motion because of a constitutionally

impermissible motivation, such as race or religion.” United States v. Forney,

9 F.3d 1492, 1502 (11th Cir. 1993) (emphasis omitted).

In this case, although the government conceded at the sentencing

hearing that Taylor had been cooperating, Taylor’s plea agreement specified

that the government was not promising to make a motion for downward

departure based on his cooperation but rather agreed “to consider whether

[his] cooperation qualifie[d] as ‘substantial assistance’ pursuant to 18 U.S.C.

§ 3553(e) and U.S.S.G. § 5K1.1.” R1-22 at 6 The agreement leaves the

decision as to filing a § 5K1.1 motion within the sound discretion of the

1
United States v. Booker, 543 U.S. ___, 125 S. Ct. 738 (2005).

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government. Accordingly, the government did not breach the plea

agreement by exercising its discretion not to make a motion. See Crawford,

407 F.3d at 1182. Further, because the government did not move for a

downward departure, the district court was prohibited from departing from

the guideline range on the basis of substantial assistance. Finally, Taylor has

not demonstrated, or even alleged, an impermissible motive behind the

government’s failure to move for a downward departure. See Forney, 9 F.3d

at 1502. Consequently, there is no plain error and review of the

government’s decision is inappropriate.2

III. CONCLUSION

Taylor has appealed his sentence on the ground that the government

breached his plea agreement in failing to file a motion for downward

departure based on substantial assistance. Because Taylor’s plea agreement

did not contain a promise by the government to move for a downward

departure and because Taylor failed to articulate an unconstitutional motive

behind the government’s decision not to move for a downward departure, we

discern no reversible error. Accordingly, we AFFIRM Taylor’s sentence.

2
In the absence of plain error, we do not reach Taylor’s argument that he should be
resentenced before a different a judge.