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United States v. Doe

United States Court of Appeals, Tenth Circuit

August 4, 2017

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JOHN DOE, Defendant-Appellant.

          Before KELLY, LUCERO, and MORITZ, Circuit Judges. [1]

          MORITZ, Circuit Judge.

         Plea 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 Because we conclude that the district court erred in ruling that our unpublished decision in United States v. Kovac, 23 F.App'x 931 (10th Cir. 2001), precluded it from reaching this argument, we reverse and remand for further proceedings.

         I

         Facing 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.

         The 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.

         Citing 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.

         In 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.

         The 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.

         II

         On appeal, Doe advances two challenges to the government's refusal to file a substantial-assistance motion.[2] 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.

         In 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 faith.").

         We can 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.").

         And it 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. ...


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