* District Judge of the Southern District of Texas, sitting by

designation. UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 96-40572

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

ORLANDO AMAYA,

Defendant-Appellant.

Appeal from the United States District Court

for the Southern District of Texas

April 16, 1997

B efore KING, PARKER, Circuit Judges, and ROSENTHAL, * District

Judge.

PARKER, Circuit Judge:

Orlando Amaya (“Amaya”) appeals to this court arguing that his

plea of guilty to a drug charge was involuntary. We agree. For

the following reasons, we vacate the conviction and remand the case

for Amaya to replead.

FACTS

Amaya entered a plea of guilty, pursuant to a plea agreement,

to a charge of aiding and abetting possession with intent to2 U.S.S.G. § 5K1.1 allows for downward departure upon a motion by

the Government stating that the defendant provided substantial assistance

in the investigation or prosecution of another offender.

3 Fed. R. Crim. P. 35(b) provides that on motion of the

Government

, a court may reduce, post-sentencing, a defendant’s sentence

to reflect a defendant’s subsequent, substantial assistance in the

investigation or prosecution of another offender.

2 distribute in excess of five kilograms of cocaine, in violation of

21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. In exchange for the plea,

the Government agreed to move to dismiss a charge of conspiracy to

possess with intent to distribute in excess of five kilograms of

cocaine and t o refrain from prosecuting Amaya further in the

Southern District of Texas for offenses arisi ng from the conduct

charged in the indictment. In the plea agreement, the Government

reserved the option to act with in its discretion to move for a

departure from the applicable sentencing guidelines pursuant to §

5K of the Sentencing Guidelines 2 or Rule 35(b) 3 of the Federal Rules

of Criminal Procedure.

At rearraignment, Amay a’s attorney stated that Amaya’s plea

was made “in return for a 5K request” and expressed concern that a

different prosector might take over the case at the sentencing

stage and not file a § 5K1.1 motion for a downward departure. The

district court assured Amaya that it would compel the Government to

fulfill its side of the bargain provided that Amaya complied with

the terms of the plea agreement. It offered the following:

[This court] has jurisdiction to treat the case as

if a Section 5K1.1 motion had been filed in

extraordinary circumstances where the Court

sincerely feels that in good faith the defendants

have complied with the substance of t heir plea

agreement and even in the face of the refusal of the3 Gov e rnment to do so....I am aware of the

implications of what you have said, and I accept the

pleas, if they are continued to be proffered, in the

spirit of the respective offerings.

And later, stil l addressing Amaya’s counsel’s concern that the

Government might not make the § 5K1.1 motion in the sentencing

phase, the district court stated

I think it’s safe to say...that if the defendants

live up to their side, this Court will ensu re that

the Government lives up to its side. So have no

apprehensions in that regard.

When taking Amaya’s plea, the court referenced its explanation of

the § 5K1.1 issue, stating,

And subject to the conversation that we have had

here..., are those the terms of the agreement as you understood them and are those their terms generally

acceptable to you?

(emphasis added). The Government did not refute the district

court’s assertion that it could, if Amaya fulfilled the conditions

of the plea agreement, proceed in t he sentencing phase as if a §

5K1.1 motion had been filed by the Government.

At sentencing, the Government did not move for a downward

departure pursuant to § 5K1.1. The district court informed Amaya

at that point that in fact, contrary to its earlier assertions, it

had no power to inquire into the Government’s decision not to file

the motion, nor did it have the power to treat Amaya’s fulfillment

of the conditions of the plea agreement as if a § 5K1.1 motion had

been filed.

Wade v. United Stat es precludes the Court from

making any inquiry into the circumstances

surrounding the Government’s election not to file a

Section 5K1.1 motion except in unique circumstances

where the Government’s intent in that regard is4 predicated upon invidious discriminatory basis. The

District Court, according to the Supreme Co urt, is

precluded fr om even making a factual inquiry into

the matter unless it is manifestly clear from

obvious bases that invidious discrimination is the

motivation. In the absence thereof and the Court

finding such representations in the record of these

proceedings, the court is not empowered to make any

inquiry of the Government, and in the absen ce of a

5K1.1 motion must contemplate the sentence pursuant

to the statutory minimum.

Amaya’s attorney moved to withdraw Amaya’s guilty plea on the

grounds that the Government did not file a § 5K1.1 motion. The

district court denied the motion. The district court then

sentenced Amaya to the lowest sentence in his guideline range and

t he statutory minimum of 120 months in prison and five yea rs of

supervised release.

Amaya’s j udgment of conviction was entered on February 2,

1993. Amaya timely noticed his appeal, however, his appeal was not

prosecuted. Three years later, court-appointed counsel for Amaya

requested that the di strict court construe Amaya’s p ro se motion

under 28 U.S.C. § 2255 as a motion for permission to file an outof-time appeal, and in June 1996, the district court granted Amaya

permission to pursue an out-of-time appeal. He now appeals to this

court.

DISCUSSION

Amaya contends that his guilty plea was not offered knowingly

and voluntarily, as required, see Boykin v. Alabama

, 395 U.S. 238,

242-44, 89 S. Ct. 1709, 23 L. Ed. 2d (1969), because he lacked a

full understanding of the plea and its consequences, see Id. at

243-44, as a result of the misimpression created by the district4 Amaya also argued a second issue in his brief, that the

Government had breached the plea agreement, but at oral argument counsel

for Amaya offered that that argument was foreclosed by a previous panel

opinion, United States v. Garcia-Bonilla

, 11 F.3d 45 (5th Cir. 1993), and

wa ived the issue. Thus, we do not address that argument. S ee

, e.g.

, United States v. Bertram , 719 F.2d 735, 737 n.3 (5th Cir. 1983).

5 The district court was apparently moved to offer such

assurances based on its observations of other plea agreements and we note

its concerns as offered at Amaya’s sentencing hearing.

And this happens with some frequency, where there is lots

of talk of Section 5K1.1 motions at time of plea, and then

that magically disappears at the time of sentencing.

. . . [T]his is an epidemic problem that’s occur ring in this

court. Every time I take a plea with the United States

Attorney’s office, there is lots of discussion about 5K1.1

at the time of taking of the plea and then once in a while

a Section 5K1.1 motion is, in fact, filed, but much more

often than not, there isn’t. Now, I realize that there is

some discussion at the time with regard to the nature of

the help and that sort of thing. But what I respectfully

suggest, recognizing separation of powers and knowing that

I am not empowered to tell the United States Attorney’s’s

office how to do its job, I suggest that it’s going to

ma ke it easier for all of us, and avoid protracted

appellate scrutiny on a redundant basis of the issue, for

the U.S. Attorney’s office to make it very much clearer

5 court. 4 The voluntariness of a guilty plea is a question of law

that we review de novo

. United States v. Howard , 991 F.2d 195, 199

(5th Cir. 1993).

The district court was without the power to honor what it

offered a t Amaya’s rearraignment. Its comments at rearraignment

suggested that even though the writ ten plea agreement did not

“bargain away” the Government’s discretion not to file a § 5K1.1

motion, the district court would (1) independently consider whether

Amaya had complied with the terms of the plea agreement, and (2) if

it was satisfied that he had, it would regard the circumstance as

if the Government had filed a § 5K1.1 mo tion for a downward

departure. 5 Amaya entered his plea only after hearing suchand u nambiguous to prospective defendants and defense

counsel exactly what is contemplated in the discussion of

5K1.1. Does it involve only the willingness to completely

debrief and to give whatever inf ormation they know, or

does it have to meet some threshold te st of value or

benefit. Because I’m troubled by the notion that a

defendant is see mingly induced to plead on the impled

promise of a motion which is then not forthcoming at the

time of sentence.

6 assurances. However, the district court’s offerings at

rearraignment were misrepresentations in that absent allegations of

unconstitutional motive in the Government’s handling of a § 5K1.1

motion, the district court could not even address the issue of

Amaya’s substantial assistance, the predicate for a § 5K1.1 motion,

much less grant a downward departure on such a basis without a §

5K1.1 motion from the Government. W ade v. United States

, 504 U.S.

181, 112 S. Ct. 1840, 118 L. Ed. 2d 524 (1992); U.S.S .G. § 5K1.1

(“ Upon motion of the government stating that the defendant has

provided substantial assistance..., the court may depart from these

guidelines”) (emphasis added); see also Melendez v. United States

,

-- U.S. --, 116 S. Ct. 2057, 2061, 135 L. Ed. 2d 427 (1996); United

States v. Price , 95 F.3d 364, 367 (5th Cir. 1996).

The Government does not dispute that there was a

misrepresentation made to Amaya at his rearraignm ent. It offers

only the argument that the evidence of Amaya’s guilt would have led

Amaya to plead guilty regardless of the district court’s

st atements, and thus we should ignore those misrepresentations.

T he Government’s argument has been rejected by the Supreme Court

and we likewise reject it as irrelevant to the issue at hand. See

Henderson v. Morgan

, 426 U.S. 637, 644-45, 96 S. Ct. 2253, 2257, 497

L. Ed. 2d 108 (1976) (even with “overwhelming evidence of guilt”

“a plea cannot support a judgment of guilt unless it was

voluntary”); see also United States ex rel. Healey v. Cannon , 553

F.2d 1052, 1057 n.7 (7th Cir. 1977) (“In reviewing a guilty

plea,...the record is not explored for ev idence supporting the

defendant’s admission of guilt. Rather, the only pertinent

question is whether the voluntariness of the plea or its

intelligent character has been infected by constitutional error.”).

A situation in which a defendant is induced by deception, an

unfulfillable promise, or misrepresentation t o enter a plea of

guilty does not meet the standard for voluntariness articulated by

the Supreme Court. Such renders a plea involuntary.

A plea of guilty entered by one fully aware of the

direct consequences, including the actual value of

any commitm ents made to him b y the court

, prosecutor, or his own counsel, must stand u nless

induced by threats (or promises to discontinue

improper harassment), misrepresentation (including

unfulfilled or unfulfillable promises), or perhaps

by promises that are by their nature improper...

Brady v. United States

, 397 U.S. 742, 755, 90 S. Ct. 1463, 1472, 25

L. Ed. 2d 747 (1970)(quoting Shelton v. United States

, 246 F.2d

571, 572 n.2 (5th Cir. 1957) ( en banc ), rev’d on other grounds

, 356

U.S. 26, 78 S. Ct. 563, 2 L. Ed. 2d 579 (1958)) (emphasis added).

See also Mabry v. Johnson

, 467 U.S. 504, 509, 510, 104 S. Ct. 2543,

2547, 2548, 81 L. Ed. 2d 437 (1984) (explaining that where plea not

product of “governmental deception” or “unfulfilled promise,”

voluntariness and intelligence requirements satisfied and noting

that where defendant pleads guilty “on a false premise,” conviction

cannot stand); Finch v. Vaughn , 67 F.3d 909, 916 (11th Cir. 1995)8

(“untenable sentencing information” provided by state trial judge

and counsel “upon whom he was entitled to rely...especially, the

state judge,” rendered defendant’s guilty plea involuntary).

In light of the fact that Amaya pleaded guilty under the

mistaken belief, offered and fostered by the district court and not

corrected by any counsel to the case, that the district court could

sua sponte examine Amaya’s “substantial assistance” eligibility for

a § 5K1.1 downward departure and sua sponte make a § 5K1.1 downward

departure in sentencing, and that Amaya sought to retract that plea

once the district court acknowledged its inability to make such a

commitment, we cannot find that A maya pleaded guilty voluntarily

and k nowingly. S ee Finch

, 67 F.3d 909; United States v. Cortez

,

973 F.2d 764 (9th Cir. 1992) (fin ding plea involuntary where

district court made explicit misrepresentations to defendant that

defendant’s right to make a selective prosecution mot ion was

preserved even after pleading guilty).

CONCLUSION

For the foregoing reasons, we VACATE the conviction and REMAND

so that Amaya may plead anew.