IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50467
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RON SYLVESTER PRICE
Defendant-Appellant.
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Appeal from the United States District Court for the
Western District of Texas
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September 4, 1996
Before GARWOOD, BARKSDALE and DENNIS, Circuit Judges.
PER CURIAM:
Defendant-appellant Ron Sylvester Price (Price) appeals his
sentence on the grounds that: (1) the Government breached the
terms of the plea agreement by refusing to make a motion for
downward departure for substantial assistance pursuant to U.S.S.G.
§ 5K1.1, thereby invalidating the waiver of appeal contained in the
agreement and Price’s sentence; (2) he received ineffective
assistance of counsel because his attorney failed to advise him
that the Government could elect not to provide him with the
opportunity to offer substantial assistance under the plea
agreement; and (3) the trial court erred in refusing to grant a
downward departure based on the totality of the circumstances under
U.S.S.G. § 5K2.0. We affirm.
Facts and Proceedings Below
In October 1994, a grand jury convened in the Western District
of Texas issued a two-count indictment charging Price, Roger Mike
Nautu (Nautu), and Kevin Henry Washington (Washington) with
conspiracy to possess cocaine base with intent to distribute and
possession with intent to distribute cocaine base in violation of
18 U.S.C. §§ 841(a)(1) and 846.
Price entered into a plea agreement with the Government which
was executed on February 6, 1995, and filed with the district court
on February 10. Under the agreement, Price agreed to enter a plea
of guilty to the possession count (Count Two) in exchange for
dismissal of the conspiracy count (Count One). Price was further
required under the terms of the agreement to “give a full,
complete, and truthful statement to law enforcement authorities
concerning his knowledge of criminal activities, both as it relates
to the charges in the Indictment as well as any other criminal
activity.” Price also agreed to waive any right of appeal granted
under 18 U.S.C. § 3742, although reserving the right to appeal any
upward departure from the sentencing guidelines. The Government
reserved the right, inter alia, to “move for upward or downward
departure motion as the government sees fit.” The plea agreement
additionally provided:
“8. The United States agrees to make known to the
Court, prior to sentencing, the nature and extent of the
Defendant’s cooperation concerning this investigation,
and of any other matters in which he may provide
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assistance. If the Defendant fully complies with the
terms of this plea agreement, and in addition provides
substantial assistance to the United States in this and
other criminal investigations, the United States Attorney
for the Western District of Texas may file a motion for
downward departure pursuant to U.S.S.G. § 5K1.1. The
Defendant understands that the decision to file a 5K1.1
motion is in the sole discretion of the United States
Attorney for the Western District of Texas. . . .”
(Emphasis added).
Price was rearraigned on February 15, 1995. Just prior to
rearraignment, Price was interviewed by IRS agent Mike Lambreth
(Lambreth) for approximately fifteen minutes. The Government
represents that Lambreth questioned Price regarding his familiarity
with certain persons in Killeen, Texas, which information was
subsequently relayed to the Killeen Police Department. Price
asserts that he was told at this time by Lambreth that another
interview would be necessary as the individual necessary to
interview Price was unavailable at that time. The interview ended
when the district judge took the bench to commence the
rearraignment.
At the rearraignment, the plea agreement was read in open
court; Price indicated that he understood the agreement and agreed
to its terms. In addition, he was specifically advised of the
provision waiving his right of appeal, and indicated that he had
discussed it with his lawyer, understood it, and agreed to it.
Price was also properly advised of the rights which he waived by
entering a guilty plea. Price’s sentencing was set for April 27,
1995. On April 18, 1995, Price’s counsel filed a motion to reset
the sentencing hearing on the grounds that Price had not yet been
afforded an opportunity to provide substantial assistance to the
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Government pursuant to the plea agreement. The district court
reset the sentencing hearing for June 8, 1995.
On June 7, 1995, counsel for Price filed a motion for downward
departure based on the totality of the circumstances pursuant to
§ 5K2.0 based upon the contention that the lack of opportunity to
provide substantial assistance, the disparity between his sentence
and the sentence imposed on co-defendant Washington, and the United
States Sentencing Commission’s proposed modifications to the
sentencing guidelines for cocaine base combined to justify such a
departure.
At the sentencing hearing on June 8, 1995, Price’s counsel
objected that the Government had failed to provide Price with the
opportunity to provide substantial assistance. The Government
responded that while it believed Price had been truthful in his
statements to the Government, the information which he provided did
not rise to the level of substantial assistance because: (1) the
Killeen Police Department informed the Government that its
investigation had proceeded beyond the point at which the
information provided by Price could be of any help; and (2) Price
had delayed nearly five months in offering such assistance while
his co-defendants were already being debriefed. Therefore, the
Government refused to move for a downward departure under § 5K1.1.
The Government did advise the court that “based on his [Price’s]
cooperation, we have no problem with the lower end of the
guidelines in this case.” However, Price made no motion to
withdraw his plea or to invalidate any part of the plea agreement.
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The district court declined to depart downward based upon the
totality of the circumstances as well. Price was sentenced to 87
months’ confinement, a supervised release term of 5 years, and a
$15,000 fine, as well as a $50 special assessment. The guidelines
confinement sentence range was 87 to 108 months.1 Price now
appeals his sentence.
Discussion
Whether the Government’s actions have breached the terms of a
plea agreement is a question of law that is reviewed de novo.
United States v. Wittie, 25 F.3d 250, 262 (5th Cir. 1994). The
proper inquiry is whether the Government’s conduct comports with
the parties’ reasonable understanding of the agreement. Id. The
defendant bears the burden of demonstrating the underlying facts
that establish the breach by a preponderance of the evidence. Id.
Absent a motion for downward departure made by the Government,
a sentencing court is without authority to grant a downward
departure on the basis of substantial assistance under § 5K1.1.
Wade v. United States, 112 S.Ct. 1840, 1843 (1992). Section 5K1.1
“gives the Government a power, not a duty, to file a motion when a
defendant has substantially assisted.” Id. Put differently, “§
5K1.1 does not require the government to move for a downward
departure if the defendant provides substantial assistance, but
1
Price avoided the otherwise mandatory statutory 120-month
minimum sentence, 21 U.S.C. § 841(b)(1)(A), by virtue of meeting
the criteria in section 5C1.2(5) of the guidelines. Price was also
awarded the three level downward adjustment for acceptance of
responsibility. There were no objections to the PSR, the guideline
calculations of which the district court adopted.
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rather grants the government discretionary power to make such a
motion.” United States v. Garcia-Bonilla, 11 F.3d 45, 46 (5th Cir.
1993). Generally, the prosecutor’s exercise of this discretion is
subject only to constitutional restraints, and therefore a federal
district court’s authority to review the refusal to move for a
downward departure based on substantial assistance is limited to
determining whether the refusal was animated by an unconstitutional
motive. Wade, 112 S.Ct. at 1843-44.
However, the government may bargain away its discretion under
the terms of a plea agreement, and thereby obligate itself to move
for a downward departure in exchange for the defendant’s
substantial assistance. Garcia-Bonilla, 11 F.3d at 46-47; United
States v. Aderholt, 87 F.3d 740, 742 (5th Cir. 1996). In those
cases in which the government has bargained away its discretion,
the only remaining inquiry is whether the aid rendered by the
defendant constitutes substantial assistance as that term was
reasonably understood by the parties at the time that they entered
into the plea agreement. See United States v. Wilder, 15 F.3d
1292, 1296-97 (5th Cir. 1994); United States v. Hernandez, 17 F.3d
78, 81-83 (5th Cir. 1994); Aderholt, 87 F.3d at 743 (where
government retains discretion under plea agreement, unnecessary to
determine whether defendant’s actions amounted to substantial
assistance).
Our precedent has recognized that the question whether or not
the government has retained its discretion to refuse to move for a
downward departure for substantial assistance turns upon the
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specific language of the plea agreement at issue. In those cases
in which the government indicates in the plea agreement that it
“will file” a motion, or other language to that effect, in exchange
for the defendant’s substantial assistance, we have held that the
government has surrendered its discretion.2 By contrast, where the
plea agreement expressly states that the government retains “sole
discretion” over the decision as to whether or not to submit a
motion, we have held that a refusal to do so is reviewable only for
unconstitutional motive.3
Here, the Government did debrief Price and did advise the
court of his cooperation, all of which did benefit Price. And
Price was sentenced at the bottom of the guidelines range (after
full three-level credit for acceptance of responsibility and taking
full advantage of section 5C1.2(5)). Downward departure was the
only way Price could have been further benefited.
Price relies on our decision in United States v. Laday in
which we held that the government had breached the plea agreement
by refusing to provide Laday with the opportunity to provide
2
United States v. Watson, 988 F.2d 544, 552 (5th Cir.
1993)(“will file”), cert. denied, 114 S.Ct. 698 (1994); United
States v. Laday, 56 F.3d 24, 26 & n.1 (5th Cir. 1995)(plea
agreement providing government “will file” motion if defendant
provides substantial assistance obligated government to give
defendant opportunity to do so); United States v. Melton, 930 F.2d
1096, 1097-98 (5th Cir. 1991) (concluding that if district court
determined on remand that defendant relied on transmittal letter
from assistant United States Attorney stating “I will recommend”
departure and offered substantial assistance or stood ready to do
so, government obligated to move for downward departure).
3
Garcia-Bonilla, 11 F.3d at 47 (“sole discretion”);
Aderholt, 87 F.3d at 742-43 (same); United States v. Underwood, 61
F.3d 306, 307 & 312 (5th Cir. 1995)(same).
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substantial assistance after having committed itself by the terms
of the plea agreement to move for a downward departure should he do
so. See also Melton, 930 F.2d at 1098-99 (if defendant “accepted
the government’s offer and did his part, or stood ready to perform
but was unable to do so because the government had no further need
or opted not to use him, the government is obligated to move for a
downward departure.”). Price argues that the government was
obligated under the plea agreement to interview him further in
order to give him the opportunity to provide substantial
assistance.
However, Price’s reliance on Laday is misplaced. Unlike in
Laday and Melton in which the government unequivocally obligated
itself to move for a downward departure in order to induce the
defendant to cooperate, the plea agreement in the present case
expressly states that the decision to move for a downward departure
remains within the “sole discretion” of the United States Attorney.
Because Price does not allege that the government’s refusal was
based upon an unconstitutional motive, our decisions in Garcia-
Bonilla and Aderholt dictate that the relief Price seeks be denied.
Price’s next point of error urges that the waiver of his right
to appeal contained in the plea agreement be invalidated because he
received ineffective assistance of counsel. In particular, Price’s
counsel on the brief, who also served as trial counsel, represents
to this Court that she failed to advise Price that the government
could elect not to give him the opportunity to provide substantial
assistance. Price relies on our decision in United States v.
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Henderson, 72 F.3d 463, 465 (5th Cir. 1995), in which we held that
the dismissal of an appeal based on a waiver in the plea agreement
is inappropriate where the defendant’s motion to withdraw his plea
is based on a claim that the waiver was tainted by the ineffective
assistance of counsel. However, Henderson is distinguishable in
that Price made no motion to withdraw his plea (or invalidate any
portion of the plea agreement) in the present case, nor did he
assert ineffective assistance of counsel below, and therefore there
was no opportunity to develop the record regarding the now claimed
ineffective assistance of counsel. Because Price’s claim of
ineffective assistance of counsel was not raised below so that an
adequate record could be developed, this claim must be dismissed
without prejudice to his right to raise it in a future section 2255
proceeding. See, e.g., United States v. McKinney, 53 F.3d 664, 675
(5th Cir. 1995).
Lastly, Price appeals the district court’s failure to grant
him a downward departure based upon the totality of the
circumstances pursuant to U.S.S.G. § 5K2.0. However, Price
expressly waived his right to appeal his sentence in all respects
except in the event of an upward departure under the terms of the
plea agreement. The record reflects that Price was specifically
advised by the district court of the waiver-of-appeal provision,
indicated that he understood it and had discussed it with his
attorney. There is nothing to indicate any confusion or lack of
understanding on Price’s part. This point of error has been
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waived, and must be dismissed. See, e.g., United States v.
Melancon, 972 F.2d 566 (5th Cir. 1992).
Accordingly, Price’s conviction and sentence are hereby
AFFIRMED.
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