## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-2864

___________ United States of America, * * Appellee, * * Appeal from the United States v. * District Court for the * Eastern District of Missouri. Bruce Barresse, * * Appellant. *

___________ Submitted: April 4, 1997 Filed: June 9, 1997

___________ Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

___________ LOKEN, Circuit Judge. After Bruce Barresse pleade d guilty to conspiring to possess methamphetamine withintent to distribute, the district court sentenced him to 188 months in prison and five years supervised release . On appeal, Barresse argues that the district court erred in denying his motion to withdraw his guilty plea and committed an error in applying the Senten cing Guidelines. We reject the latter contention but remand for furthe r consideration of Barresse’s motion to withdraw his plea.-2-

1. On March 7, 1996, Barresse signed a letter agreement in which he agreed to cooperate in on-going criminal investigations . Pursuant to that agreement, on April 3 Barresse waived indictment , entered a plea of guilty to a one-count methamphetamine conspiracy information, and signed a Stipulation of Facts Relevant to Sentencing. On July 1, after the government advised that it would not file a downward depa rture motion und er 18 U.S.C. § 3553(e) and U.S.S.G.§ 5K1.1 , Barresse moved to compel th e government's compliance with the plea agreement or to perm it withdrawal of his guilty plea. On July 9, at sentencin g, the district court denied that motion on the ground that de ciding whether Barresse had provided substantial assistance “is within th e government’s decisi on-making and discretion,” absent an abusive motive that had not been established in this case. Barresse appeals that ruling.

When the government fails to fulfill a material term of a plea agreement, th e defendant m ay seek specific performance or may seek to withdraw his plea. Se e Santobe llo v. New York , 404 U.S. 257, 262-63 (1971). An unambiguous , unconditi onal promise to file a downward departure motion is binding on th e government. See United States v. Coleman , 895 F.2d 501, 506 (8th Cir. 1990). If such
a promis e was part of the inducement or consideration underlying a guilty plea, it s breach will entitle defendant to relief

.
In United States v. Kelly , 18 F.3d 612, 616 (8th Cir. 1994), and United States v. Romsey , 975 F.2d 556, 557 (8th Cir. 1992), we affirmed denial of the relief Barresse seeks be cause the plea agreements clearly preserved the government’s prerogative to decide whether defendant’s cooperation warranted a sub stantial assistance motion, and th erefore the government’s refusal to file that motion was not a breach of the ple a agreement. In this case, on the other hand, the cooperation agreement provided that, “i n exchange for [Barresse] providing truthful information, complete cooperation , truthful testimony and assistance . . . the Government agree s to: File a motion pursuant to [§ 5K1.1 and § 3553(e)] recommending a downward-departure.” The Stipulatio n of Facts Relevant to Sentencing in turn provided: “In exchange for [Barresse’s] plea-3-

of guilty and the fulfillment of the conditions of the attached cooperation agreement , the Government agrees to file a downward-departure motion.”

We conclude that these agreements did not unambiguously reserve to th e gove rnment its customary discretion to decide whether Barresse's cooperatio n warranted a substantial assistance motion. The cooperation agreement conditione d such a motion on Barresse providing truthful information and testimony and “complete coop eration.” To defendants and defense attorneys who negotiate such agreements , "complete cooperation" may well connote doing all one can do to assist -- an objective standard -- whereas providing "substantial assistance" connote s doing enough to satisfy the government’s unilateral notion of what assistance is “substantial.” In other words, unlike the ple a agreement in Kelly , these documents read as a whole do not make i t clea r that an ambiguous term, “complete cooperation,” was intended to mea n cooperation that amounts to substantial ass istance. Accordingly, we must remand for further proceedings to determine (i) what the parties meant by “truthful information , complete cooperation, truthful testimony and assistance” in Part I of the cooperatio n agreement; (ii) whether Barresse met that condition as construed; and (iii) if Barresse satisfied the precondit

ions to the government’s promise to file a substantial assistance
mo tion, whether he is now entitled to relief for the government’s breach of tha t promise. We express no views on the merits of those issues.

2. Barress e also argues the district court erred in increasing his base offens e level under U.S.S.G.§ 2D1.1(b)(1) because he possessed a firearm during the course of conduc t that included the conspiracy offense to which he pleaded guilty. W e disagree. The firearm, drug paraphernalia, and a quantity of amphetamine were seized from Barresse during a traffic stop in December 1994. His Stipulation of Fact s Relevant to Sentencing recited that he was involved in the methamphetamin e distribution conspiracy between April 1995 and February 1996. Assuming this issue
was properly preserved in the district court, we conclude the court did not clearly err in finding a sufficient nexus between Barresse’s firearm possession and his drug--4-

trafficking activity. SeeU.S.S.G. App. C, Amendment 394 (clarifying t hat the relevant conduct p rovisions of § 1B1.3(a)(2) apply); United States v. Mumford , 25 F.3d 461, 47 0 (7th Cir. 1994); United States v. Hayes , 15 F.3d 125, 127 (8th Cir.) (standard of review), cert. denied , 512 U.S. 1225 (1994).

The judgmentof the district court is reversed and the case is remanded fo r further proceedings consistent with this opinion. A true copy.

Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.