NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3783

___________

UNITED STATES OF AMERICA

v.

JULIUS BUTLER,

Appellant

_______________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

D.C. Criminal No. 04-cr-00732-001

(Honorable Juan R. Sanchez)

______________

Submitted Pursuant to Third Circuit LAR 34.1(a)

January 9, 2012

Before: SCIRICA, RENDELL and SMITH, Circuit Judges.

(Filed: January 20, 2012)

_________________

OPINION OF THE COURT

_________________

SCIRICA, Circuit Judge.

Julius Butler plead guilty pursuant to a written plea agreement for conspiracy to 

distribute cocaine in violation of 21 U.S.C. § 846. The District Court sentenced Butler to 

300 months’ imprisonment. Butler appeals, arguing the government breached the terms 

of the plea agreement. We will affirm.
2

I

Julius Butler was an organizer and leader of the “2nd Gang,” which distributed 

crack and powder cocaine in Allentown, Pennsylvania from 1998 through 2003. He was 

one of thirteen individuals indicted by a grand jury on a twelve count indictment. Butler 

entered into a plea agreement in which he agreed to plead guilty to one count of 

conspiracy to distribute more than 50 grams of cocaine base and more than 500 grams of 

cocaine, in violation of 21 U.S.C. § 846. The agreement established Butler’s obligations 

to “cooperate fully and truthfully with the government” and reserved to the government’s 

discretion the decision of whether to file a departure motion under the Sentencing 

Guideline § 5K1.1. The District Court held a plea hearing on February 23, 2006, and 

accepted Butler’s guilty plea. During the plea hearing the court confirmed that Butler

understood that the decision of whether to file a departure motion rested within the 

“judgment and discretion” of the government. The prosecution stated that no 

determination had been made on Butler’s eligibility for a departure motion but Butler had 

made initial cooperative efforts towards his eligibility for a § 5K1.1 reduction. 

The government sent Butler a letter dated March 31, 2006, informing him it would 

not file a motion to depart from the mandatory minimum sentence under 18 U.S.C. § 

3553(e) because he had not provided sufficient information about the criminal activity of 

others to justify such a filing. The letter confirmed the government would only file a 

motion for a downward departure under U.S.S.G. § 5K1.1 if he continued to cooperate. 

The sentencing hearing, originally scheduled for May 31, 2006, was twice continued. 

The government sent a second letter to Butler dated May 28, 2008, informing him that his 
3

failure to provide “substantial assistance in the investigation or prosecution of others”

meant it would not file a § 5K1.1 motion to depart from the sentencing guidelines. 

At the sentencing hearing on August 8, 2008, Butler argued the government’s 

March 31, 2006 letter was an agreement by the government to recommend a sentence of 

ten years’ imprisonment. The District Court reiterated that the court had an extensive 

colloquy with Butler at the plea hearing and specifically highlighted it remained within 

the sole discretion of the government whether to file a § 5K1.1 departure motion. 

Butler’s counsel made a motion to withdraw the guilty plea. The court decided to 

proceed with sentencing and held it would consider the motion to withdraw at a later 

time, upon the filing of a formal motion. Butler never filed a formal motion to withdraw 

the guilty plea.

The District Court found Butler’s total offense level was 36, applied a four-level 

enhancement for his role as an organizer/leader of the organization, a two-level 

enhancement because members used guns in furtherance of the drug trafficking activity, 

and a two-level reduction for acceptance of responsibility. With an adjusted offense level 

of 40 and a criminal history category of III, Butler’s guideline range was 360 months to 

life imprisonment. He was sentenced to 300 months incarceration, a fine of $2,500, and a 

special assessment of $100. Butler timely appealed.

1

 1 Butler’s plea agreement contained a conditional waiver of appeal which prohibited 

Butler from appealing the sentence except in three instances: (1) the “sentence on any 

count ... exceeds the statutory maximum”; (2) “the sentencing judge erroneously 

departed upward pursuant to the Sentencing Guidelines”; (3) “the sentencing judge ... 

imposed an unreasonable sentence above the final Sentencing Guideline range.” None of 

those situations are applicable. 
4

II

Butler argues the government breached the terms of the plea agreement by failing 

to move for a downward departure from the guidelines under U.S.S.G. § 5K1.1.2

Butler contends he reasonably believed the plea agreement he entered into with the 

government was for a ten year sentence. He understood that the government would not 

file a departure from the ten-year mandatory minimum under 18 U.S.C. § 3553(e), but he 

believed the government would move for a downward departure from the guidelines 

 We 

analyze whether there is a violation of the plea agreement under contract law standards. 

United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998). “In determining 

whether the plea agreement has been breached, courts must determine ‘whether the 

government’s conduct is inconsistent with what was reasonably understood by the 

defendant when entering the plea of guilty.’” Id. (quoting United States v. Badaracco, 

954 F.2d 928, 939 (3d Cir. 1992)). We must therefore determine whether the 

government’s conduct falls within the range of reasonable expectations understood by 

Butler when he entered his guilty plea. We exercise de novo review over the question of 

whether the government has breached the plea agreement. United States v. Rivera, 357 

F.3d 290, 293 (3d Cir. 2004).

 

Although the government filed a motion to enforce the waiver provision, it has 

since stated in its brief that the motion is moot and that we should decide the case on its 

merits. Although the waiver provision is likely valid and enforceable, we retain 

jurisdiction over an appeal where a defendant has signed an appellate waiver agreement. 

United States v. Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007). We will therefore decide 

whether the Government breached the plea agreement on the merits.

2 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 

28 U.S.C. § 1291.
5

under § 5K1.1 in order to arrive at a ten-year sentence. He supports his belief with the 

government’s statements made at the plea hearing3 and the March 31, 2006 

correspondence between his counsel and the government.

4

In the plea agreement, the Government agreed to make a reduction motion if it 

determined Butler provided substantial assistance. The plea agreement was clear that the 

decision on whether to file a motion for departure under § 5K1.1 remained within the sole 

discretion of the government and that at the time of the agreement no determination as to 

his eligibility for a § 5K1.1 motion had been made. In its thorough plea colloquy, the 

District Court ensured that Butler understood the terms of the agreement and that the 

decision of whether to file a § 5K1.1 motion was within the government’s sole discretion.

Furthermore, the court clarified that even if the government filed a § 5K1.1 departure 

motion, the court was free to sentence him within the guidelines. To the extent that 

Butler believed his plea agreement was for a ten-year year sentence, that was an 

unreasonable belief on his part. Because the filing of a § 5K1.1 motion was not a term of 

the plea agreement, the failure to file a motion cannot be a breach of the agreement.

 We agree with the District 

Court that the government did not breach the plea agreement as it never agreed to file a § 

5K1.1 motion. 

 3 At the plea hearing, the government stated:

Right. I do want to clarify that and state that the defendant has made initial 

cooperative efforts, which would make him eligible for a 5K. That’s not to say 

that we will file a 5K motion yet, but he has made cooperative efforts that make 

him eligible for a 5K1 as of this date. 

4 The government’s letter included the following language:

Based upon his initial proffers with us, and his anticipated continued cooperation, 

the government will only file a motion for downward departure from the 

sentencing guidelines under § 5K1.1. 
6

III

For the foregoing reasons, we will affirm the judgment of conviction and sentence.