* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata and coll ateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 26 1998 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. JOHN L. THOMPSON, Defendant-Appellant. No. 97-3172 (District of Kansas) (D.C. No. 95-CR-20086-3)

ORDER AND JUDGMENT *

Before LUCERO , McKAY, and MURPHY , Circuit Judges.

Defendant John L. Thompson appeals the district cou rt’s denial of his motion seeking to compel the Government to file a m otion for downward departure based on his cooperation. Thompson also appeals his sentence.1 After examining the briefs and the appellate record , this panel has

determined unanimously that oral argument would notmaterially assist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral ar gument. -2- Exercising jurisdiction pursuant to 28 U.S.C. § 129 1 and 18 U.S.C. § 3742(a), this court affirms. 1
I. BACKGROUND On January 4, 1996, Thompson was indicted for consp iring to distribute more than five kilograms of cocaine and 500 grams o f cocaine base, in violation of 21 U.S.C. § 846. On June 26, 1996, an Informati on was filed charging Thompson with using a telephone to facilitate a dru g transaction, in violation of 21 U.S.C. § 843(b). On June 28, 1996, pursuant to a plea agreement, Thompson entered a guilty plea to the Information. In excha nge for his guilty plea, the Government agreed to dismiss the charge pending aga inst him in the earlier Indictment. The plea agreement also provided that “[i]f, in the sole opinion of the United States Attorney’s office, the defendant’s co operation amounts to substantial cooperation, the government will file amotion, pursuant to Section 5K1.1 Sentencing Guidelines . . . to depart from th e guideline level range.” Before his sentencing, Thompson learned the Governm ent did not plan to file a motion for downward departure pursuant to U. S.S.G. § 5K1.1. Thompson therefore filed a motion to compel the Government t o file a § 5K1.1 motion.-3-

Thompson was sentenced on May 28, 1997. At the sentencing hearing, the district court denied Thompson’s motion to compel the Government to file a § 5K1.1 motion. The court also denied Thompson’s r equest for a reduced base offense level for a mitigated role in the offense a nd rejected Thompson’s argument that the quantity of cocaine attributable to him for sentencing purposes was inaccurate. The district court then sentenced Thompson to the statutory maximum term of 48 months of imprisonment, plus sup ervised release and a special assessment. On appeal, Thompson argues the district court erredin (1) denying his motion to compel the Government to file the motion for downward departure; (2) calculating the drug quantity attributable to him f or sentencing purposes; and (3) refusing to reduce his base offense level based on his role in the offense.
II. DISCUSSION A. Motion to Enforce Plea Agreement Thompson first argues the Government’s decision notto file a motion for downward departure was made in bad faith and in vio lation of the plea agreement. In support of his argument, Thompson asserts he ren dered substantial cooperation based on his three-hour, pre-plea debriefing and hi s willingness to testify against2 In his motion to compel the Government to file a do wnward departure

motion, Thompson asserted the Government had reques ted that he testify at the various post-plea proceedings initiated by codefend ant Walton, but later determined his testimony was unnecessary. -4- codefendant James Walton at various post-plea proce edings initiated by Walton. 2 Thompson also contends that based on his pre-plea d ebriefing, when the Government agreed to file a motion for downward dep arture if he rendered substantial cooperation, it was informed of the ext ent of his knowledge of criminal activities and thus the extent of his abil ity to provide substantial cooperation. Section 5K1.1 of the Sentencing Guidelines permits a sentencing court to depart downward from the guideline range “[u]pon mo tion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” Under § 5K1.1, the Government is not required to file a motion fordownward departure, but instead is granted discretion to do so. See Wade v. United States , 504 U.S. 181, 185 (1992). The Government may bargain away this d iscretion in a plea agreement. See United States v. Lee , 989 F.2d 377, 380 (10th Cir. 1993). Here, however, the plea agreement expressly left the deci sion to file a § 5K1.1 motion in the sole discretion of the Government. “When a Defendant asserts that the government breached an agreement that leaves discre tion to the prosecutor, the-5-

district court’s role is limited to deciding whethe r the government made the determination [not to file the motion] in good fait h.” Id. at 380. Whether the Government acted in good faith is a factual determi nation which we review for clear error. See id. In response to Thompson’s motion to compel the Gove rnment to file a § 5K1.1 motion, the Government asserted Thompson ha d not provided substantial assistance warranting a § 5K1.1 departure. With re spect to Thompson’s cooperation in the pre-plea debriefing, the Governm ent asserted Thompson had received the benefit of this cooperation because he was able to enter into a plea agreement dismissing a second charge and providing that the Government would inform the sentencing court of his cooperation and would recommend he receive a sentence at the lowest end of the Sentencing Guidel ine range. The Government therefore maintained that a § 5K1.1 motion would re quire additional assistance. The Government further indicated that as of the tim e of sentencing, Thompson had provided no additional information or assistanc e which would warrant a departure under § 5K1.1. During Thompson’s sentenc ing, the district court agreed with the Government’s arguments and denied T hompson’s motion. The court further stated that even if the Government ha d made the motion, the court would have denied the departure.-6-

Thompson has not shown the district court erred infinding the Government acted in good faith in deciding not to f ile a § 5K1.1 motion. Although Thompson asserts that based on his pre-ple a debriefing the Government was aware of the extent of his knowledge before ent ering into the plea agreement, Thompson has not shown that based on the debriefing the Government determined he could provide no further assistance. To the con trary, the Government’s original intention to have him testify at various p roceedings involving a codefendant indicates the Government believed in go od faith that he was able to provide further assistance. Thompson’s assertion that he has provided substanti al cooperation is also inadequate to entitle him to his requested relief. See Wade , 504 U.S. at 186 (“[A] claim that a defendant merely provided substantial assistance will not entitle a defendant to a remedy or even to discovery or an ev identiary hearing.”). The plea agreement expressly provides that the determination of whether he provided substantial cooperation was to be made solely by th e Government. Thompson does not contend the Government promised him his co operation in the pre-plea debriefing was itself sufficient to constitute subs tantial assistance for purposes of a § 5K1.1 motion. The plea agreement does not cont ain or reflect such a promise, and Thompson has not alleged the Government made a promise not contained in the plea agreement.-7-

Likewise, Thompson’s asserted willingness to testif y on the Government’s behalf in various proceedings involving a codefenda nt does not itself constitute substantial assistance such as would require the Go vernment to file a § 5K1.1 motion. Cf. United States v. Vargas , 925 F.2d 1260, 1266 (10th Cir. 1991). A defendant does not have the right to dictate the st rategy decisions of the prosecution; instead, such decisions are properly w ithin the sole discretion of the Government, limited only by the requirement that th e Government make such decisions in good faith. Thompson has not alleged the Government declined to have him testify in such proceedings for improper m otives, thus preventing him in bad faith from providing substantial assistance. Cf. United States v. Courtois , 131 F.3d 937, 939 (10th Cir. 1997). Moreover, in the absence of language in the plea ag reement promising Walton that he would be given the opportunity to pr ovide assistance, the fact that another opportunity did not arise for him to provid e further assistance does not render the government’s decision not to file a § 5K 1.1 motion a bad faith decision. Cf. id. (holding that in absence of specific language prov iding otherwise, government did not obligate itself underplea agreement to give defendant opportunity to render substantial assistance). We thus reject3 Thompson also asserts that because the district cou rt did not determine the

meaning of the term “substantial cooperation” as us ed in the plea agreement, the court “was in no position to determine whether the Government used its discretion regarding whether defendant had rendered substantia l cooperation, in good faith.” This court rejects Thompson’s argument. Although the plea agreement refers to “substantial cooperation” rather than “substantial assistance in the investigation or prosecution of another,” the language employed i n U.S.S.G. § 5K1.1, the plea agreement provision at issue also explicitly refers to filing a motion under § 5K1.1. It would therefore be reasonable to assum e the term “substantial cooperation” was intended to be synonymous with the term “substantial assistance” as used in § 5K1.1. There is no indication in the record that Thompson understood “substantial cooperation” to have a meaning distinct from the “substantial assistance” language of § 5K1.1. Even assuming there is a material difference between “substantial cooperatio n” and “substantial assistance,” Thompson has not adequately explained how ascribing a different meaning to “cooperation” substantively alters the a nalysis to be employed by the district court in determining whether the Government acted in good faith in deciding not to file a § 5K1.1 motion. -8- Thompson’s assertion the district court erred in de nying his motion to compel the Government to file a § 5K1.1 motion. 3 B. Calculation of Drug Quantity Thompson next argues the district court erred in ca lculating the amount of drugs attributable to him for purposes of determini ng his base offense level. See U.S.S.G. § 2D1.1(a)(3) (setting base offense level according to drug quantity attributable to defendant). According to the presentence report, Thompson actedas a courier in a drug conspiracy led by codefendant James Walton. The co conspirators purchased large amounts of cocaine in Los Angeles and then transported and sold the cocaine in4 The presentence report also indicated that in Janua ry 1994, Thompson

rented a motel room in Los Angeles for Michael Sull ivan, another courier in the drug conspiracy, to be used while awaiting a shipme nt of cocaine which Sullivan was to deliver to Kansas City. -9- the Kansas City area. The drug proceeds were then transported back to California for further cocaine purchases. In April 1994, Thompson was stopped in Louisiana carrying approximately $33,000 in suspected drug pr oceeds. Thompson was arrested and the money was seized. Following his r elease, Thompson made telephone calls to Walton’s pager to advise Walton of the seizure. Thompson made the calls from both Louisiana and Kansas. Pur suant to his plea, Thompson admitted the $33,000 was drug proceeds and admittedhe was attempting to carry the proceeds from New Orleans to Los Angeles. 4 In calculating the drug equivalent of the $33,000 s eized from Thompson, the district court relied on testimony that members of the drug conspiracy for which Thompson had acted as a courier purchased coc aine in California for $15,000 to $16,000 per kilogram. The cocaine was t hen sold in Kansas for $21,000 to $22,000 per kilogram. Based on the evid ence that Thompson was transporting the $33,000 in drug proceeds to Los An geles for Walton, the court used the $22,000 per kilogram figure to determine t hat the drug equivalent of the $33,000 was approximately 1.5 kilograms of cocaine.-10-

Thompson argues the evidence did not establish thatthe $33,000 seized from him in New Orleans was related to cocaine sale s made by Walton in Kansas City and he asserts the district court therefore er red in converting the $33,000 to 1.5 kilograms of cocaine. We review the district c ourt’s drug quantity calculation for clear error. See United States v. Cruz Camacho , 137 F.3d 1220, 1225 (10th Cir. 1998). At the sentencing hearing, Thompson argued the dru g quantity should be lower because cocaine could typically be purchased on the street in Kansas for $100 per gram (or $100,000 per kilogram). In suppo rt of this argument, Thompson introduced the affidavit of a Lawrence, Ka nsas police officer. The district court rejected Thompson’s argument because Thompson failed to show cocaine was sold in this case by members of the con spiracy for $100 per gram. As the district court recognized, the only evidence in the record indicated the coconspirators sold cocaine for approximately $22,0 00 per kilogram. Moreover, the evidence showed the organization in which Thomp son was involved was in the business of buying and selling kilogram quantit ies of cocaine, rather than gram quantities. Therefore, as the court stated, t he larger quantities in which the coconspirators were dealing “accounts for a lower p er gram price than what would occur in a retail sale on the street to a use r of cocaine.”5 Pursuant to U.S.S.G. § 2D1.6, the base offense leve l for the use of a

telephone in committing a drug offense is determine d by the offense level applicable to the underlying offense. In this case , the underlying offense was possession with intent to distribute cocaine. -11- The court further rejected Thompson’s argument thatthe $33,000 was not connected to the California-Kansas drug conspiracy. Instead, the court found the evidence linked Thompson and the specific transacti on in question to the larger conspiracy led by Walton. Thompson admitted the $3 3,000 was drug proceeds and admitted he was attempting to carry the proceed s to Los Angeles. Further, Thompson admitted that after the money was seized h e called Walton both from Louisiana and from Kansas to inform him of the seiz ure. Based on the evidence in the record, the district court did not clearly e rr in relying on the $22,000 per kilogram figure in calculating the drug quantity. C. Reduction for Mitigating Role Thompson next argues the district court erred by no t reducing his sentence for a mitigating role. Thompson asserted before th e district court that he should receive a four-level reduction to his base offense level pursuant to U.S.S.G. § 3B1.2(a). U.S.S.G. § 3B1.2 vests the district court with disc retion to grant a base offense level reduction if it finds a defendant played a mitigating role in a given offense. 5 The court may reduce the defendant’s offense leve l by four levels if it-12-

finds the defendant was a “minimal” participant in the criminal activity, by two levels if the defendant was a “minor” participant i n the activity, or by three levels if the defendant's actions fell between a minimal a nd minor role. U.S.S.G. § 3B1.2. Application note 4 to § 3B1.2 provides th at when a defendant “has received a lower offense level by virtue of being c onvicted of an offense significantly less serious than warranted by his ac tual criminal conduct, a reduction for a mitigating role under this section ordinarily is not warranted because such defendant is not substantially less cu lpable than a defendant whose only conduct involved the less serious offense.” We review the district court's factual findings reg arding a defendant's role in the offense for clear error and give due deferen ce to the court’s application of the Sentencing Guidelines to the facts. See United States v. Smith , 131 F.3d 1392, 1399 (10th Cir. 1997), cert. denied, 118 S. Ct. 1109 (1998). The burden is on the defendant to establish by a preponderance of the evidence that he is entitled to an offense level reduction under the Se ntencing Guidelines. See United States v. McCann , 940 F.2d 1352, 1359 (10th Cir. 1991). Thompson argues that his role in the relevant offen se, possession with intent to distribute cocaine, was merely to act as a courier between the buyer and seller of the cocaine. He asserts he was therefore less culpable than both the buyer and seller and is accordingly eligible for a mitigating role reduction.-13-

The determination of whether a defendant is entitle d to a reduction under § 3B1.2 is “heavily dependent upon the facts of the particular case.” U.S.S.G. § 3B1.2 background. Thompson’s assertion that he a cted as a courier does not automatically mean he was a minor or minimal partic ipant entitled to a § 3B1.2 reduction. This court has rejected the argument th at a defendant’s courier status alone compels an offense level reduction under § 3B 1.2. See, e.g., United States v. Ballard, 16 F.3d 1110, 1115 (10th Cir. 1994). Likewise, T hompson’s contention that because he was a courier he was nec essarily less culpable than other participants does not necessarily mean he played a minimal or minor role in the offense. See United States v. Caruth , 930 F.2d 811, 815 (10th Cir. 1991); United States v. Walker , 1 F.3d 423, 427-28 (6th Cir. 1993). Reviewing the record, this court concludes the dist rict court’s findings that Thompson was not a minimal or minor participant are supported by the evidence and the district court’s decision not to grant a re duction is consistent with the Guidelines. In rejecting Thompson’s request for a reduction under § 3B1.2, the court first recognized Thompson had already receive d the benefit of pleading guilty to the less serious offense of possession rather than a drug conspiracy offense and therefore was not entitled to a furtherreduction because his conduct in the larger criminal enterprise was less serious than other participants. See U.S.S.G. § 3B1.2 application note 4; cf. United States v. Isaza-Zapata , No. 97-6 The district court specifically noted that Thompson had not been credited

with the cocaine seized from Sullivan, for whom Tho mpson allegedly rented a motel room in California for use while waiting for a cocaine shipment. -14- 5443, 1998 WL 294021, at *6 (3d Cir. June 8, 1998); United States v. Pena , 33 F.3d 2, 3 (2d Cir. 1994). The court also noted Tho mpson was only held accountable for the drug amount involved in the spe cific offense to which he pled guilty (i.e., the drug equivalent of the $33,000 fo und on Thompson when he was arrested), rather than the entire quantity of drugs involved in the overall conspiracy. 6 Therefore, a reduction based on a mitigating role in the larger conspiracy was not appropriate. See United States v. Burnett , 66 F.3d 137, 140- 41 (7th Cir. 1995) (noting that when a courier is h eld accountable only for drug amounts personally carried, a reduction is not nece ssarily warranted even if courier played minor role in relation to larger dru g enterprise); see also IsazaZapata , 1998 WL 294021, at *6; United States v. Belitz , 141 F.3d 815, 818-19 (8th Cir. 1998); United States v. Fernandez , 92 F.3d 1121, 1122-23 (11th Cir. 1996); United States v. Gomez , 31 F.3d 28, 31 (2d Cir. 1994); United States v. Olibrices , 979 F.2d 1557, 1560 (D.C. Cir. 1992). The district court also found that in attempting to transport drug proceeds to Walton in Los Angeles, Thompson was not a minima l participant with respect to the specific offense of possession with intent t o distribute. The court further determined that even if it were to consider Thompso n’s role in the overall-15-

criminal conspiracy, Thompson was not a minimal participant in the larger enterprise. The court found Thompson was not “some body who, on a one-time basis, makes an incredibly bad decision to particip ate as a courier.” Cf. U.S.S.G. § 3B1.2 application note 2 (noting reduction for mi nimal participant may be appropriate when defendant “played no other role in a very large drug smuggling operation than to offload part of a single marihuan a shipment” or when defendant “was recruited as a courier for a single smuggling transaction involving a small amount of drugs”). Instead, the court found the ev idence established that Thompson had multiple ties to codefendant James Wal ton and his drug trafficking organization and was “a garden-variety participant in Mr. Walton’s conspiracy.” Cf. id. § 3B1.2 application note 1 (stating defendant’s “la ck of knowledge or understanding of the scope and structure of the ent erprise and of the activities of others is indicative of a role as minimal participa nt”); Isaza-Zapata , 1998 WL 294021, at *3 (noting relevant factors in determini ng whether courier is a minor participant include defendant’s relationship to oth er participants and defendant’s awareness of the nature and scope of the criminal e nterprise). These findings are supported by the record and are not clearly erroneo us. We therefore conclude the district court did not err in refusing to grant a r eduction based on Thompson’s role in the offense.
III. CONCLUSION-16-

The district court did not clearly err in finding t he Government acted in good faith in deciding not to file a motion for dow nward departure under U.S.S.G. § 5K1.1. The district court further did not clearl y err in computing the drug quantity attributable to Thompson or in determining Thompson did not play

a minor or minimal role in the offense. Accordingl y, this court AFFIRMS

. ENTERED FOR THE COURT:

Michael R. Murphy Circuit Judge