dissenting.
I respectfully dissent because the comprehensive plea agreement entered into by the parties is the key to resolution of this appeal. Anzalone’s responsibilities under the agreement are described in several different paragraphs of the agreement. They include pleading guilty to count one of the indictment, refraining from additional crimes, cooperating in very specific ways with the government, and paying the required special assessment. In return the government made a number of promises, including not to prosecute Anzalone for any other prior drug violations and to consider any cooperation under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e).
The specific undertaking of the government in respect to Anzalone’s cooperation was contained in paragraph 5.B.: “Any cooperation provided by you will be considered by the government under Sentencing Guideline § 5K1.1 and U.S.C. § 3553(e).” Section 5K1.1 provides that “[ujpon motion of the government stating that the defendant has provided substantial assistance ..., the court may depart from the guidelines” and that the “appropriate reduction shall be determined by the court.” It also lists factors the court may consider in deciding if it wishes to depart, and if so, to what degree. Section 3553(e) provides that “[ujpon motion of the Government, the court shall have the authority to impose a sentence below a level established by the statute as a minimum sentence.” Under both sections it is up to the court to decide whether it wants to grant any downward departure motion and to what extent it might choose to depart. The sentencing function thus properly remains with the court under the agreement. See U.S. v. Stockdall, 45 F.3d 1257, 1260 (8th Cir.1995).
Paragraph 8 of the agreement specifically conditioned the government’s performance on Auzalone’s compliance with his duties:
... should you violate any term or condition of this agreement, the United States may: refuse to make a motion or recom*943mendation, or withdraw any motion or recommendation already made, which it is otherwise bound by this agreement to make regarding sentencing.
Paragraph 2, the most detailed section describing Anzalone’s duties, begins “You shall not commit any additional crimes whatsoever.” The parties thus agreed in these paragraphs that if Anzalone were to engage in criminal activity, the government would not be bound to consider his cooperation for any departure motion based on substantial assistance. The fact that paragraph 5.B. is the only section of the lengthy plea agreement that contains a responsibility of the government which would involve the making of a motion is evidence that this is the type of motion contemplated by paragraph 8.
Since the government’s decision not to make a departure motion was based on the plea agreement itself, the eases on which the court relies are not on point. United States v. Wade recognizes the government’s general “power, not a duty, to file a motion when a defendant has substantially assisted.” 112 S.Ct. at 1843. Here the government took on a duty in the plea agreement to consider Anzalone’s cooperation, but that duty was explicitly conditioned on the defendant not committing any additional crimes. Because of information it received about Anzalone’s recent use of controlled substances, the government chose not to file a substantial assistance motion. Anzalone had given it this right in his plea agreement. Review of the decision not to file the downward departure motion in this case thus turns on the terms of the plea agreement, not On questions of unconstitutional motive or rationality discussed in Wade or on the quality of Anzalone’s assistance. The majority cites United States v. Rounsavall, 128 F.3d 665 (8th Cir.1997), and United States v. Stockdall, 45 F.3d 1257 (8th Cir.1995), for the proposition that only the quality of Anzalone’s assistance'can be considered by the government in deciding whether to make a § 5K1.1 or § 3553(e) motion. Those cases did not involve a defendant’s violation of an express condition of a plea agreement, however, and they are not controlling.
This case is like United States v. Epley, 52 F.3d 571, 580 (6th Cir.1995), where the critical fact was also the nature 'of the plea agreement. The court there noted that:
'... the government reserved complete discretion over whether to request a downward departure. ' It would’ go against the terms of the plea agreement to find that the government was obliged to ask for such a departure.
Here also the government preserved its discretion on filing a departure motion. Under this agreement the government was entitled to choose not to consider a downward departure motion if Anzalone violated any term or condition of their contract.
Because the government acted within its rights under the plea agreement, I would affirm the judgment of the district court.