United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 96-2864

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* Eastern District of Missouri.

Bruce Barresse, *

*

Appellant. *

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 Submitted: April 4, 1997

 Filed: June 9, 1997

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Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.

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LOKEN, Circuit Judge.

After Bruce Barresse pleaded guilty to conspiring to possess methamphetamine

with intent 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 Sentencing Guidelines. We reject the latter contention but remand for further

consideration of Barresse’s motion to withdraw his plea.
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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 departure motion

under 18 U.S.C. § 3553(e) and U.S.S.G.§ 5K1.1, Barresse moved to compel the

government's compliance with the plea agreement or to permit withdrawal of his guilty

plea. On July 9, at sentencing, the district court denied that motion on the ground that

deciding whether Barresse had provided substantial assistance “is within the

government’s decision-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, the

defendant may seek specific performance or may seek to withdraw his plea. See

Santobello v. New York, 404 U.S. 257, 262-63 (1971). An unambiguous,

unconditional promise to file a downward departure motion is binding on the

government. See United States v. Coleman, 895 F.2d 501, 506 (8th Cir. 1990). If such

a promise was part of the inducement or consideration underlying a guilty plea, its

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 because the plea agreements clearly preserved the government’s prerogative to

decide whether defendant’s cooperation warranted a substantial assistance motion, and

therefore the government’s refusal to file that motion was not a breach of the plea

agreement. In this case, on the other hand, the cooperation agreement provided that,

“in exchange for [Barresse] providing truthful information, complete cooperation,

truthful testimony and assistance . . . the Government agrees to: File a motion pursuant

to [§ 5K1.1 and § 3553(e)] recommending a downward-departure.” The Stipulation

of Facts Relevant to Sentencing in turn provided: “In exchange for [Barresse’s] plea
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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 the

government its customary discretion to decide whether Barresse's cooperation

warranted a substantial assistance motion. The cooperation agreement conditioned

such a motion on Barresse providing truthful information and testimony and “complete

cooperation.” 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" connotes doing enough to satisfy

the government’s unilateral notion of what assistance is “substantial.” In other words,

unlike the plea agreement in Kelly, these documents read as a whole do not make it

clear that an ambiguous term, “complete cooperation,” was intended to mean

cooperation that amounts to substantial assistance. 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 cooperation

agreement; (ii) whether Barresse met that condition as construed; and (iii) if Barresse

satisfied the preconditions to the government’s promise to file a substantial assistance

motion, whether he is now entitled to relief for the government’s breach of that

promise. We express no views on the merits of those issues. 

2. Barresse also argues the district court erred in increasing his base offense

level under U.S.S.G.§ 2D1.1(b)(1) because he possessed a firearm during the course

of conduct that included the conspiracy offense to which he pleaded guilty. We

disagree. The firearm, drug paraphernalia, and a quantity of amphetamine were seized

from Barresse during a traffic stop in December 1994. His Stipulation of Facts

Relevant to Sentencing recited that he was involved in the methamphetamine

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-
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trafficking activity. See U.S.S.G. App. C, Amendment 394 (clarifying that the relevant

conduct provisions of § 1B1.3(a)(2) apply); United States v. Mumford, 25 F.3d 461,

470 (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 judgment of the district court is reversed and the case is remanded for

further proceedings consistent with this opinion.

A true copy.

Attest:

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