IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 95-50467

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

RON SYLVESTER PRICE

Defendant-Appellant.

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Appeal from the United States District Court for the

Western District of Texas

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September 4, 1996

Before GARWOOD, BARKSDALE and DENNIS, Circuit Judges.

PER CURIAM:

Defendant-appellant Ron Sylvester Price (Price) appeals his

sentence on the grounds that: (1) the Government breached the

terms of the plea agreement by re fusing to make a motion for

downward departure for substantial assistance pursuant to U.S.S.G.

§ 5K1.1, thereby invalidating the waiver of appeal contained in the

agreement and Price ’s sentence; (2) he received ineffective

assistance of counsel because his attorney failed to advise him

that the Government could elect not to provide him with the

opportunity to offer substantial assistance under the plea

agreement; and (3) the trial court erred in re fusing to grant a2

downward departure based on the totality of the circumstances under

U.S.S.G. § 5K2.0. We affirm.

Facts and Proceedings Below

In October 1994, a grand jury convened in the Western District

of Texas issued a two-count indictment charging Price, Roger Mike

Nautu (Nautu ), and Kevin Henry Washington (Washington) with

conspiracy to pos sess cocaine base with intent to distribute and

possession with intent to distribute cocaine base in violation of

18 U.S.C. §§ 841(a)(1) and 846.

Price entered into a plea agreement with the Government which

was executed on February 6, 1995, and filed with the district court

on February 10. Under the agreement, Price agreed to enter a plea

of guilty to the possession count (Count Two) in exchange for

dismissal of the conspiracy count (Count One). Price was further

required under the terms of the agreement to “give a full,

complete, and truthful statement to law enforcement au thorities

concerning his knowledge of criminal activities, both as it relates

to the charges in the Indictment as wel l as any other criminal

activity.” Price also agreed to waive any right of appeal granted

under 18 U.S.C. § 3742, although reserving the right to appeal any

upward de parture from the sentencing guidelines. The Government

reserved the right, inter alia

, to “move for upward or downward

departure motion as the government sees fit.” The plea agreement

additionally provided:

“8. The United States agrees to make known to the

Court, prior to sentencing, the nature and extent of the

Defendant’s cooperation concerning this inv estigation,

and of any other matt ers in which he may provide3

assistance. If the Defendant fully complies with the

terms of this plea agre ement, and in addition provides

substantial assistance to the United States in this and

other criminal investigations, the United States Attorney

for the Western District of Texas may file a motion for

downward departure pursuan t to U.S.S.G. § 5K1.1. T he

Defendant understands that the decision to file a 5K1.1

motion is in the sol e discretion of the United States

Attorney for the Western District of Texas.

. . .”

(Emphasis added).

Price was rearraigned on February 15, 1995. Just prior to

rearraignment, Price wa s interviewed by IRS agent Mike Lambreth

(Lambreth) for approximately fifteen minu t es. The Government

represents that Lambreth questioned Price regarding his familiarity

with certain persons in Killeen, Texas, which information was

subsequently relayed to the Killeen Police Department. Price

asserts that he was told at this time by Lambre th that another

interview would be necessary as the individual necessa ry to

interview Price was unavailable at that time. The interview ended

when the district judge took th e bench to commence the

rearraignment.

At the rearraignment, the plea agreement was read in open

court; Price indicated that he understood the agreement and agreed

to its terms. In addition, he was specifically advised of the

provision waiving his right of appeal, and indicated that he had

discussed it with his lawyer, understood it, and agreed to it.

Price was also properly advised of the rights which he waived by

entering a guilty plea. Price’s sentencing was set for April 27,

1995. On April 18, 1995, Price’s counsel filed a motion to reset

the sentencing hearing on the grounds that Price had not yet been

afforded an opportunity to provide substantial assistance to the4

Government pursuant to the plea agreement. The district court

reset the sentencing hearing for June 8, 1995.

On June 7, 1995, counsel for Price filed a motion for downward

departure based on the totality of th e circumstances pursuant to

§ 5K2.0 based upon the contention that the lack of opportunity to

provide substantial assistance, the disparity between his sentence

and the sentence imposed on co-defendant Washington, and the United

States Sentencing Commission’s proposed modifications to the

sentencing guidelines for cocaine base combined to justify such a

departure.

At the se ntencing hearing on June 8, 1995, Price’s counsel

objected that the Government had failed to provide Price with the

opportunity to provide substantial assistance. The Government

responded that while it believed Price had been truthful in his

statements to the Government, the information which he provided did

not rise to the level of substantial assistance because: (1) the

Killeen Police Department informed the Government that its

investigation had proceeded beyond the point at which the

information provided by Price could be of any help; and (2) Price

had delayed nearly five months in off ering such assistance while

his co-defendants were already being debriefed. Therefore, the

Government refused to move for a downward departure under § 5K1.1.

The Government did advise the court that “based on his [Price’s]

cooperation, we have no problem with the lower end of the

guidelines in this case.” However, Price made no motion to

withdraw his plea or to invalidate any part of the plea agreement.1 Price avoided the otherwise mandatory statutory 120-month

minimum sentence, 21 U.S.C. § 841(b)(1) (A), by virtue of meeting

the criteria in section 5C1.2(5) of the guidelines. Price was also

awarded the three level downward adjustment for acceptance of

responsibility. There were no objections to the PSR, the guideline

calculations of which the district court adopted.

5 The district court declined to depart downward based upon the

totality of the circumstances as well. Price was sentenced to 87

months’ confinement, a supervised release term of 5 years, and a

$15,000 fine, as well as a $50 special assessment. The guidelines

confinement s entence range was 87 to 108 months. 1 Price now

appeals his sentence.

Discussion

Whether the Government’s actions have breached the terms of a

plea agreement is a question o f law that is reviewed d e novo

.

United States v. Wittie

, 25 F.3d 250, 262 (5th Cir. 1994). The

proper inquiry is whether the Gov ernment’s conduct comports with

the parties’ reasonable understanding of the agreement. Id . The

defendant bears the burden of demonstrati ng the underlying facts

that establish the breach by a preponderance of the evidence. I d

.

Absent a motion for downward departure made by the Government,

a sentencing court is without authority to grant a downward

departure on the basis of su bstantial assistance under § 5K1.1.

Wade v. United States

, 112 S.Ct. 1840, 1843 (1992). Section 5K1.1

“gives the Government a power, not a duty, to file a motion when a

defendant has substantially assisted. ” I d

. Put differently, “§

5K1.1 does not require the government to move for a downward

departure if the defenda nt provides substantial assistance, but6

rat her grants the government discretionary power to make such a

motion.” U

nited States v. Garcia-Bonilla

, 11 F.3d 45, 46 (5th Cir.

1993). Generally, the prosecutor’s exercise of this discretion is

subject only to constitutional restraints, and therefore a federal

district court’s authority to review the refusal to move for a

downward departure based on substantial assis tance is limited to

determining whether the refusal was animated by an unconstitutional

motive. Wade , 112 S.Ct. at 1843-44.

However, the government may bargain away its discretion under

the terms of a plea agreement, and thereby obligate itself to move

for a dow nward departure in exchange for the defendant’s

substantial assistance. Garcia-Bonilla , 11 F.3d at 46-47; United

States v. Aderholt

, 87 F.3d 740, 742 (5th Cir. 1996). In those

cases in whic h the government has bargained away its discretion,

the only remaining inquiry is whether the aid rendered by the

defendant constitutes substantial assistance as that term w a s

reasonably understood by the parties at the time that they entered

into the plea agreement. S ee United St ates v. Wilder , 15 F.3d

1292, 1296-97 (5th Cir. 1994); United States v. Hernandez

, 17 F.3d

7 8, 81-83 (5th Cir. 1994); A derholt

, 87 F.3d at 743 (w here

government retains discretion under plea agreement, unnecessary to

determine whether defendant’s actions amounted to substantial

assistance).

Our precedent has recognized that the question whether or not

the government has retained its discretion to refuse to move for a

downward depa rture for substantial assistance turns upon the2 U nited States v. Watson

, 988 F.2d 544, 55 2 (5th Cir.

1993)(“will file”), cert. denied

, 114 S.Ct. 698 (1994 ); U nited

States v. Laday

, 56 F.3d 24, 26 & n.1 (5th Cir. 1995)(plea

agreement providing governmen t “will file” motion if defendant

provides substantial assistance obligated government to give

defendant opportunity to do so); United States v. Melton

, 930 F.2d

1096, 1097-98 (5th Cir. 1991) ( concluding that if district court

determined on rem and that defendant relied on transmittal letter

fro m assistant United States Attorney stating “I will recommend”

departure and offered substantial assistance or stood ready to do

so, government obligated to move for downward departure).

3 Garcia-Bonilla , 11 F.3d at 47 (“sole discretion”);

Aderholt

, 87 F.3d at 742-43 (same); United States v. Underwood

, 61

F.3d 306, 307 & 312 (5th Cir. 1995)(same).

7 specific language of the plea agreement at issue. In those cases

in which the government indicates in the plea agreement that it

“will file” a motion, or other language to that effect, in exchange

for the defendant’s substantial assistance, we have held that the

government has surrendered its discretion. 2 By contrast, where the

plea agreement expressly states that the government retains “sole

discretion” over the decision as to whether or not to s ubmit a

motion, we have held that a refusal to do so is reviewable only for

unconstitutional motive. 3

Here, the Government did debrief Price and did advise the

court of his cooperat ion, all of which did benefit Price. And

Price was sentenced at the bottom of the guidelines range (after

full three-level credit for acceptance of responsibility and taking

full advantag e of section 5C1.2(5)). Downward departure was the

only way Price could have been further benefited.

Price relies on our decision in United States v. Laday in

which we held that the government had breached the plea agreement

by refusing to provide Laday with the opportunity to provide8

substantial assistance after having committed itself by the terms

of the plea agreement to move for a downward departure should he do

so. See also Melton , 930 F.2d at 1098-99 (if defendant “accepted

the government’s offer and did his part, or stood ready to perform

but was unable to do so because the government had no further need

or opted not to use him, the government is obligated to move for a

downward departure.”). Price argues that the governme nt was

obligated under the plea agreement to interview him further in

order to give him the opportunity to provide substantial

assistance.

However, Price’s reliance on Laday is mi splaced. Unlike in

Laday and M elton in which the government unequivocally obligated

itself to move for a downward depar ture in order to induce the

defendant to cooperate, the plea agreement in the present case

expressly states that the decision to move for a downward departure

remains within the “sole discretion” of the United States Attorney.

Because Price does not alleg e that the government’s refusal was

ba sed upon an unconstitutional motive, our decisions in G arciaBonilla and Aderholt dictate that the relief Price seeks be denied.

Price’s next point of error urges that the waiver of his right

to appeal contained in the plea agreement be invalidated because he

received ineffective assistance of counsel. In particular, Price’s

counsel on the brief, who also served as trial counsel, represents

to this Court that she failed to advise Price that the government

could elect not to give him the opportunity to provide substantial

assistance. Price relies on our decision in U nited States v.9

Henderson

, 72 F.3d 463, 465 (5th Cir. 1995), in which we held that

the dismissal of an appeal based on a waiver in the plea agreement

is inappropriate where the defendant’s motion to withdraw his plea

is based on a claim that the waiver was tainted by the ineffective

assistanc e of counsel. However, H enderson is distinguishable in

that Price made no motion to withdraw his plea (or invalidate any

portion of the plea agreement) in the present case, nor did he

assert ineffective assistance of counsel below, and therefore there

was no opportunity to develop the record regarding the now claimed

ineffective assistance of counsel . Because Price’s claim of

ineffective assistance of counsel was not raised below so that an

adequ ate record could be developed, this claim must be dismissed

without prejudice to his right to raise it in a future section 2255

proceeding. S ee, e.g., United States v. McKinney

, 53 F.3d 664, 675

(5th Cir. 1995).

Lastly, P rice appeals the district court’s failure to grant

him a downward departure based up on the totality of the

circumstances pursuant to U.S.S. G. § 5K2.0. However, Price

expressly waived his right to appeal his sentence in all respects

except in the event of an upward departure under the terms of the

plea agre ement. The record reflects that Price was specifically

advised by the district court of the waiver-o f-appeal provision,

indicated that he understood it and had discussed it with his

attorney. There is nothing to indicate any confusion or lack of

understanding on Price’s part. This point of error has been10

waived, and must be dismissed. S ee, e.g., United States v.

Melancon , 972 F.2d 566 (5th Cir. 1992).

Accordingly, Price’s conviction and sentence are hereby

AFFIRMED.