In the

United States Court of Appeals

For the Seventh Circuit

No. 00-1189

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLAUDE H. ATKINSON,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Indiana,

Indianapolis Division.

No. 90-CR-113--Sarah Evans Barker, Judge.

ARGUED May 16, 2001--DECIDED July 30, 2001

 Before HARLINGTON WOOD, JR., COFFEY, and

WILLIAMS, Circuit Judges.

 HARLINGTON WOOD, JR., Circuit Judge. On

September 5, 1991, the appellant, Claude

H. Atkinson, pled guilty to conspiracy to

manufacture marijuana, in a quantity in

excess of 1000 plants, in violation of 21

U.S.C. sec.sec. 841(a)(1) and 846 and

currency structuring in violation of 31

U.S.C. sec. 5324(3) and 18 U.S.C. sec. 2.

Atkinson was originally sentenced to

twenty-five years imprisonment, but

following an appeal to this court, his

sentence was reduced to 210 months. See

United States v. Atkinson, 979 F.2d 1219

(7th Cir. 1992) ("Atkinson I"). Atkinson

made two more trips to this court, but

his sentence remained the same. In 1999,

after an amendment to the United States

Sentencing Guidelines (the "Guidelines"

or "U.S.S.G."), Atkinson was again resentenced by the district court, and his

sentence was further reduced to 188

months. It is this new sentence that he

now appeals. For the reasons stated, we

affirm the sentence imposed by the

district court.

I. Background

 The facts underlying this case are fully

laid out in Atkinson I, 979 F.2d 1219,

and it is unnecessary to repeat them

here. Atkinson was initially sentenced on

September 27, 1991. Atkinson’s plea

agreement with the government provided

inter alia:

6. In exchange for Atkinson entering a
plea of guilty as set forth in paragraph

1, above, and his cooperation as set

forth in paragraph 5, above, the

Government agrees at the time of

sentencing to file a motion pursuant to

Title 18, United States Code, Section

3553(a) and Section 5K1.1 of the

Sentencing Reform Act, which the parties

to this agreement established by statute

and the Sentencing Reform Act.

Atkinson has been advised and is aware

that under the Federal Sentencing

Guidelines, even without the enhancement

of his sentence under provisions of Title

21, United States Code, Sections 841 and

851, his criminal history places him in

the career offender category at level 37

and provides for a sentencing guideline

range of thirty years to life.

7. Pursuant to the provisions of Rule

11(e)(1)(C) of the Federal Rules of

Criminal Procedure, the parties to this

Agreement agree that the term of

imprisonment may not exceed a period of

thirty-five (35) years for the charges to

which the defendant, Claude Harrison

Atkinson, is pleading guilty. . . . The

Government recognizes that the defendant,

Claude Harrison Atkinson, is free to

argue for the sentence he deems to be

most appropriate. The defendant, Claude

Harrison Atkinson, recognizes the

Government intends to argue for a

sentence of a term of imprisonment of

thirty-five (35) years.

8. The parties recognize that the United

States of America is to receive complete,

total and truthful cooperation, not only

in the Southern District of Indiana, but

also in such other districts of the

United States of America which have or

will agree in writing to the terms of

this Final Plea Agreement. The Government

agrees, at the time of sentencing, to

advise the Court of the quantity and

quality of cooperation provided to the

Government by the defendant, Claude

Harrison Atkinson.

 At the 1991 sentencing, the district

court determined that Atkinson’s total

offense level was 38 with a

CriminalHistory Category of VI. This

determination resulted in a sentencing

guideline range of 360 months to life

imprisonment. The district court noted

that a cap of thirty-five years had been

agreed to and that the government had

filed a U.S.S.G. sec. 5K1.1 motion

requesting a downward departure. Judge
Barker granted the downward departure

and, noting Atkinson’s age and health

problems, imposed a sentence of twentyfive years (300 months) imprisonment./1

 Atkinson appealed the sentence. On

appeal, the government conceded that the

sentence was wrong because one of

Atkinson’s prior felonies upon which the

court relied at sentencing did not count

toward career offender status under

U.S.S.G. sec.sec. 4B1.1 and 4B1.2.

Atkinson I, 979 F.2d at 1222. To correct

this mistaken assumption regarding

Atkinson’s criminal history, the

government argued that the court should

allow the reinstatement of charges

dismissed as part of the plea agreement.

Id. at 1222-23. Refusing to reform the

plea agreement, the panel vacated

Atkinson’s sentence and remanded the case

for re-sentencing. Id. at 1223.

 On remand, the district court determined

that Atkinson’s proper offense level was

35 and his Criminal History Category was

IV. This computation resulted in a

guideline range of 235 to 293 months

imprisonment. The court then heard

statements from both counsel regarding

the government’s sec. 5K1.1 motion. The

prosecutor characterized Atkinson’s

cooperation as "virtually flawless in

every respect" and summed up by stating,

"the government requests a downward

departure, but nonetheless requests a

substantial sentence." The district court

granted the government’s sec. 5K1.1

motion, holding that a proper departure

would be a three-level reduction in the

total offense level. The downward

departure resulted in an adjusted

guideline range of 168 to 210 months. The

district court, noting the seriousness of

his criminal conduct, sentenced Atkinson

to 210 months of imprisonment.

 Atkinson again appealed. See United

States v. Atkinson, 15 F.3d 715 (7th Cir.

1994). He argued that the district court

had abused its discretion by not granting

him a more substantial downward departure

and had misapplied the Guidelines. Id. at

717. We rejected his arguments and

affirmed the sentence imposed by the

district court. Id. at 721. Subsequently,

in January 1996, Atkinson filed a motion

to vacate his sentence under 28 U.S.C.

sec. 2255. The district court denied the

motion, and we affirmed in an unpublished
order.

 In 1999, Atkinson filed, pro se, a

motion for re-sentencing under 18 U.S.C.

sec. 3582(c)(2)/2 based on Amendment

516 to the 1995 Guidelines. At the time

Atkinson was sentenced, the Guidelines

equated one marijuana plant with 1000

grams of marijuana. Amendment 516 changed

the weight equivalency of a marijuana

plant from 1000 grams to 100 grams and

applied retroactively. See U.S.S.G. sec.

1B1.10. The court gave the government

thirty days to respond to the motion, and

Atkinson was then given twenty days to

reply.

 In its written response, the government

did not oppose Atkinson’s motion and

acknowledged the change in the

Guidelines. However, it urged the

district court to consider the terms and

general intent of the plea agreement in

making its sentencing determination. The

government insisted that both parties

were well aware that Atkinson would be

sentenced to a substantial term of

imprisonment in spite of his significant

cooperation in several prosecutions.

Also, the government pointed out that

Atkinson’s previous sentence involved a

discretionary downward departure for

cooperation under U.S.S.G. sec. 5K1.1.

Citing United States v. Wyatt, 115 F.3d

606, 610 (8th Cir. 1997), and United

States v. Vautier, 144 F.3d 756, 761

(11th Cir. 1998), the government asserted

that the district court was "not

obligated to honor its original

departure, or award a proportionately

equal departure." The government made

known to the court that it had "no

objection to a re-sentencing of the

defendant at the high end of the new

guideline range (188 months), but

object[ed] to any further departure from

that range."

 The district court did not hold a

hearing on the matter. Instead, on

November 19, 1999, the district court

ordered the Probation Office to prepare

a memorandum outlining what the guideline

range would have been had Amendment 516

been in effect at the time of Atkinson’s

original sentencing. The probation

officer, applying Amendment 516,

determined that Atkinson’s base offense

level would be 32. The memorandum then

noted that two levels should be added
pursuant to U.S.S.G. sec. 3B1.1(c),

resulting in an adjusted offense level of

34. Finally, the probation officer

determined that the offense level should

be reduced by three levels for acceptance

of responsibility under U.S.S.G. sec.

3E1.1(b), resulting in a total offense

level of 31. Given Atkinson’s Criminal

History Category of IV, the revised

guideline range was 151 to 188 months

imprisonment.

 In a written order dated December 28,

1999, the district court granted

Atkinson’s request for re-sentencing. The

order read in part as follows:

 The court has considered the fully

briefed arguments of the parties and the

expanded record and finds that had

Amendment 516 been in effect at the time

of sentencing the court would have

imposed an executed sentence of One

Hundred Eighty-Eight (188) months for

[C]ount I and would not have imposed a

fine as to Count I. The court further

finds no reason to conclude that the

original sentence should not now be

modified consistent with this

determination.

. . .

 The Probation Officer is directed to

prepare an amended judgment, identical in

all respects with the judgment entered on

February 5, 1993, except that the amended

judgment shall provide for the imposition

of an executed sentence of One Hundred

Eighty-Eight (188) months for Count I and

no fine for Count I.

 The relief to which Atkinson is entitled

does not require a further in-court

proceeding, but merely the ministerial

re-creation and re-issuance of the final

judgment. United States v. Tidwell, 178

F.3d 946 (7th Cir. 1999) . . . . 

(emphasis in original). The amended

judgment was entered on January 4, 2000.

Atkinson filed this timely appeal, and

this court ordered that counsel be

appointed to represent Atkinson on

appeal./3

II. Analysis

A.Downward Departure Request: U.S.S.G.

sec. 5K1.1 Motion 

 Atkinson contends that the district

court erred during re-sentencing by
failing to consider the government’s

U.S.S.G. sec. 5K1.1 motion for a downward

departure. He asserts that the district

court did not understand it had the

authority to grant a downward departure

at the time of his second re-sentencing.

We do not have jurisdiction to review a

district court’s decision to exercise its

discretion to deny a downward departure

under the Guidelines. United States

v.Albarran, 233 F.3d 972, 978 (7th Cir.

2000). However, we can review "a refusal

to depart that is based on an erroneous

legal conclusion about the court’s

authority to depart." United States v.

Poff, 926 F.2d 588, 591 (7th Cir. 1991).

 At first glance, it appears Atkinson’s

argument may have some merit. In its

December 28th order, the district court,

citing Tidwell, 178 F.3d 946, stated that

the re-sentencing did "not require a

further in-court proceeding, but merely

the ministerial re-creation and reissuance of the final judgment." Also,

Atkinson notes (1) the government’s sec.

5K1.1 motion was filed under seal, years

before the second re-sentencing; (2) the

Probation Office memorandum outlining the

effect of Amendment 516 did not address

the sec. 5K1.1 motion; and (3) the

district court never mentioned the motion

in its re-sentencing order. Among other

cases, Atkinson cites United States v.

Vahovick, 160 F.3d 395 (7th Cir. 1998),

for support. In Vahovick, we vacated the

defendant’s sentence because we could not

"conclude with assurance" that the

district court considered a specific

downward departure. Id. at 398-99.

Atkinson asserts that, based on the

record in the present case, it is

impossible to know with assurance that

the district court considered a downward

departure. 

 We are unable to join in Atkinson’s

conclusion. "[A] claim that a seasoned

judge . . . didn’t understand his

discretion will rarely, if ever, be

successful when built merely on

inference. Article III judges are

presumed to know the law. . . ."

Albarran, 233 F.3d at 979 (internal

quotations and citations omitted).

Atkinson’s argument relies almost solely

upon inference. Upon examination, it

becomes clear that his argument is not

supported by the record. The government,

in its response to Atkinson’s request for
re-sentencing, advised the court that

Atkinson’s previous sentence involved a

discretionary downward departure under

sec. 5K1.1. Citing cases from the Eighth

and Eleventh Circuits, the government

asserted that the district court was "not

obligated to honor its original

departure, or award a proportionately

equal departure." Atkinson, in his reply

to the government’s response, further

addressed the sec. 5K1.1 issue, arguing

that the government’s stance on the issue

constituted a breach of the plea

agreement. 

 In imposing the revised sentence, the

district court noted that it had

"considered the fully briefed arguments

of the parties and the expanded record."

Contrary to Atkinson’s assertions, the

district court was not "unaware that it

had the discretion to depart." Here,

although Judge Barker, the same judge who

has presided over all of Atkinson’s

sentencing hearings, never explicitly

stated that she considered the sec. 5K1.1

motion in connection with the second resentencing, there is nothing in the

record to suggest that she believed that

she did not have the authority to depart

downward. She had in fact exercised this

discretion by granting downward

departures on two previous occasions in

this same case. The papers filed by the

government in connection with the second

re-sentencing made it clear that the sec.

5K1.1 departure was a matter that the

court needed to consider. We conclude

that the refusal to grant a downward

departure was an exercise of the court’s

discretion which cannot be reviewed by

this court. We dismiss this portion of

Atkinson’s appeal for lack of appellate

jurisdiction. 

B. Breach of Plea Agreement

 We turn next to Atkinson’s contention

that the government breached its plea

agreement with him by failing to remind

the court of the nature and value of his

cooperation and by specifically objecting

to any departure from the revised

guideline range. We believe Atkinson

sufficiently preserved this issue for

appeal, and therefore, our standard of

review is de novo. See United States v.

Schilling, 142 F.3d 388, 394 (7th Cir.

1998)./4 
 "[P]lea agreements are contracts, and

their content and meaning are determined

according to ordinary contract

principles." United States v. Ingram, 979

F.2d 1179, 1184 (7th Cir. 1992). "[T]o

insure the integrity of the plea

bargaining process, the ’most meticulous

standards of both promise and performance

must be met by the government.’" United

States v. Jimenez, 992 F.2d 131, 134 (7th

Cir. 1993) (quoting United States v.

Bowler, 585 F.2d 851, 854 (7th Cir.

1978)). "The government must fulfill any

promise that it expressly or impliedly

makes in exchange for a defendant’s

guilty plea." Ingram, 979 F.2d at 1184

(citing Santobello v. New York, 404 U.S.

257, 261 (1971)). "[T]he strict

fulfilment of prosecutorial promises

emanates as a requirement from the

significant consequences of a guilty

plea." United States v. Ataya, 864 F.2d

1324, 1330 (7th Cir. 1988) (internal

quotations and citations omitted).

However, "[w]e review the language of the

plea agreement objectively and hold the

government to the literal terms of the

plea agreement." United States v.

Williams, 102 F.3d 923, 927 (7th Cir.

1996). To make a determination as to

breach, we "must examine whether there

has been a substantial breach of the plea

agreement, in light of the parties’

reasonable expectations upon entering the

agreement." Schilling, 142 F.3d at 395

(internal quotations and citations

omitted).

 Under the terms of the plea agreement,

the government was required to file a

sec. 5K1.1 motion for a downward

departure and to advise the court of the

nature and extent of Atkinson’s

cooperation. Clearly, the government

fulfilled this promise. Prior to

Atkinson’s initial sentencing on

September 27, 1991, the government filed

a sec. 5K1.1 motion. Also, the government

advised Judge Barker of Atkinson’s

cooperation at both the initial

sentencing and at the hearing on the

first re-sentencing. Finally, the

government reminded the court of the

pending sec. 5K1.1 motion in its papers

filed in connection with the second resentencing. 

 Therefore, we need only consider whether

the government’s recommendation of a

sentence at the top of the revised
guideline range (188 months) and its

specific objection to "any further

departure" from the revised range

constituted a breach of the plea

agreement. We believe that it does not.

The government expressly informed the

court of its pending sec. 5K1.1 motion.

The government had also informed Judge

Barker of the nature and extent of

Atkinson’s cooperation at the two

previous sentencing hearings. Based on

the terms of the plea agreement, Atkinson

was aware that the government intended to

argue for a sentence of thirty-five

years. The recommendation of a 188 month

sentence falls well below this sentencing

cap. After examining the terms of the

plea agreement together with the unique

facts of this case, we believe that the

government fulfilled all promises arising

out of the agreement. Atkinson’s claim of

error fails.

 III. Conclusion

 For the above stated reasons, we AFFIRM

the sentence imposed by the district

court.

FOOTNOTES

/1

The Judgment entered October 8, 1991 set out the

"Guideline Range as Determined by the Court" as

follows: Total Offense Level: 36, Criminal History Category: VI, and Imprisonment Range: 324 to

405 months. The Judgment noted that the court was

departing from the Guidelines "upon motion of the

government, as a result of defendant’s substantial assistance" and "[a]s a result of the defendant’s age and health, in consideration of the

length of the sentence ordered by the Court." The

Judgment reflected the sentence announced by the

court at the sentencing hearing, 300 months

imprisonment on Count 1 and sixty months imprisonment on Count 4 to be served concurrent to the

sentence on Count 1.

/2

Section 3582(c)(2) provides:

(c) Modification of an imposed term of imprisonment.--The court may not modify a term of imprisonment once it has been imposed except that--

. . .

(2) in the case of a defendant who has been

sentenced to a term of imprisonment based on a

sentencing range that has subsequently been

lowered by the Sentencing Commission pursuant to

28 U.S.C. sec. 994(o), upon motion of the defendant . . . the court may reduce the term of

imprisonment, after considering the factors set
forth in section 3553(a) to the extent that they

are applicable, if such a reduction is consistent

with the applicable policy statement issued by

the Sentencing Commission. 

18 U.S.C. sec. 3582(c)(2). 

/3

Atkinson has also filed a pro se brief on appeal.

/4

While the district court did not expressly address the issue, Atkinson, acting pro se, argued

as a part of his reply in the district court that

the government had breached the plea agreement by

requesting a sentence at the high end of the

revised guideline range and objecting to any

further departure. It is well-established that

pleadings submitted by pro se defendants should

be liberally construed. McNeil v. United States,

508 U.S. 106, 113 (1993).