KELLY, LUCERO, and MORITZ, Circuit Judges. 
MORITZ, Circuit Judge.
agreements are "an essential component of the
administration of justice." Santobello v. New
York, 404 U.S. 257, 260 (1971). But there's nothing
"just, " id., about requiring defendants
to fulfill their obligations under such agreements unless the
government must do the same. Here, the plea agreement
obligated the government to exercise its discretion in
determining whether to file a substantial-assistance motion.
Yet according to the defendant, the government failed to
exercise that discretion in good faith and thereby breached
the plea agreement. Because we conclude that the district
court erred in ruling that our unpublished decision in
United States v. Kovac, 23 F.App'x 931 (10th
Cir. 2001), precluded it from reaching this argument, we
reverse and remand for further proceedings.
two counts of possession with intent to distribute,
see 21 U.S.C. § 841(a)(1), defendant John Doe
pleaded guilty as charged pursuant to a Fed. R. Crim. P.
11(c)(1)(B) plea agreement. As part of that agreement, Doe
waived his right to appeal or collaterally attack his plea,
his conviction, or any sentence within the Guidelines range.
And in return, the government agreed-in its sole discretion
and by any means it deemed appropriate-to evaluate Doe's
cooperation in determining whether to file a
substantial-assistance motion. See 18 U.S.C. §
3553(e); U.S.S.G. § 5K1.1. The plea agreement also
clarified that the ultimate decision to file such a motion
was, like the government's evaluation of Doe's
cooperation, solely within the government's discretion.
district court accepted Doe's guilty plea. But it
didn't sentence him right away. Instead, Doe remained in
protective custody while he and a close family member helped
law enforcement bring down a local drug operation. That
cooperation placed both of their lives at risk.
the assistance of both Doe and his family member, the
prosecuting attorney twice asked the downward departure
committee of the United States Attorney's Office to
approve the filing of a substantial-assistance motion.
Without explanation, and despite the opinion of both the
prosecuting attorney and local law enforcement that Doe and
his family member had indeed provided substantial assistance,
the committee denied those requests.
response, Doe filed a motion to enforce the plea agreement.
Citing general contract-law principles, Doe argued that the
government acted arbitrarily and in bad faith by refusing to
file a substantial-assistance motion, especially in the
absence of any explanation for the committee's decision.
district court denied Doe's motion. In doing so, it
reasoned that the plea agreement's plain language left
the decision to file a substantial-assistance motion within
the government's sole discretion. And it concluded that
under our unpublished decision in Kovac, 23
F.App'x 931, it couldn't review that discretionary
decision- even for the limited purpose of determining whether
the government acted in good faith. Based on a Guidelines
range of 121 to 151 months in prison and the applicable
120-month and 60-month statutory minimums, the district court
then imposed concurrent 121-month sentences. Doe appeals.
appeal, Doe advances two challenges to the government's
refusal to file a substantial-assistance
motion. First, he mounts a constitutional attack:
he alleges that the government's decision wasn't
"rationally related to any legitimate [g]overnment
end." Wade v. United States, 504 U.S. 181, 186
(1992). Second, he asserts a contractual challenge: he argues
that the government breached the plea agreement's implied
duty of good faith and fair dealing by refusing to file a
substantial-assistance motion. See United States v.
Hahn, 359 F.3d 1315, 1324-25 (10th Cir. 2004) (en banc)
("[C]ontract principles govern plea agreements.");
United States v. Rexach, 896 F.2d 710, 714 (2d Cir.
1990) ("There is . . . an implied obligation of good
faith and fair dealing in every contract."); Ace
Constr. Co. v. W. H. Nichols & Co., 353 F.2d 110,
112 (10th Cir. 1965) ("Following general contract law,
we have said that each party owe[s] the contract the duty of
good faith performance . . . ."); Restatement (Second)
of Contracts § 205 (Am. Law Inst. 1981) ("Every
contract imposes upon each party a duty of good faith and
fair dealing in its performance and its enforcement.").
We begin by addressing Doe's contractual argument. And
because our resolution of that issue ultimately requires us
to reverse and remand for further proceedings, we decline to
reach Doe's constitutional challenge.
asking the district court to enforce the plea agreement, Doe
argued that the government acted in bad faith by refusing to
file a substantial-assistance motion. But the district court
refused to address Doe's good-faith argument, reasoning
that our unpublished decision in Kovac forecloses
such review. See 23 F.App'x at 938
("[W]here a plea agreement expressly grants the
government sole discretion over the filing of a substantial
assistance motion, a prosecutor's discretionary refusal
to file such a motion may not be reviewed for bad
hardly blame the district court for reaching this conclusion.
After all, the circuits are split on this question.
Compare, e.g., United States v. Isaac, 141
F.3d 477, 483 (3d Cir. 1998) ("[A] district court is
empowered to examine for 'good faith' a
prosecutor's refusal to file a § 5K1.1 motion
pursuant to a plea agreement that gives the prosecutor
'sole discretion' to determine whether the
defendant's assistance was substantial."), with,
e.g., United States v. Aderholt, 87 F.3d 740,
742 (5th Cir. 1996) ("If the [g]overnment retains sole
discretion to file the [substantial-assistance] motion, its
refusal to file is reviewable only for unconstitutional
motives such as the race or religion of the accused.").
appears this court is likewise divided. Compare,
e.g., Kovac, 23 F.App'x at 938 (refusing to
review prosecutor's discretionary decision for bad
faith), with United States v. Overstreet, 51
F.App'x 838, 842 (10th Cir. 2002) (unpublished) ("In
situations in which a defendant 'asserts that the
government breached an agreement that leaves discretion to
the prosecutor, the district court's role is limited to
deciding whether the government made the determination in
good faith.'" (quoting United States v.