* The Honorable J. Thomas Marten, District Judge, Uni ted States

District Court for the District of Kansas, sitting by designation. 

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

### DEC 11 1997 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v. DONALD COURTOIS,

Defendant-Appellant. No. 96-5105

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF OKLAHOMA

(D.C. No. 95-CR-138-2-B)

Submitted on the briefs: Michael G. Katz, Federal Public Defender, Jill M. W ichlens, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Ap pellant. Stephen C. Lewis, United States Attorney, Allen J. Litchfield, Assistant United States Attorney, Tulsa, Oklahoma, for Plaintiff-App ellee.

Before PORFILIO and LUCERO , Circuit Judges, and MARTEN , * District Judge.1 After examining the briefs and appellate record, th is panel has determined

unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument. -2- LUCERO , Circuit Judge.

We are required in this sentence appeal to decide w hether the use of language by the United States in a plea agreement s tating that “the discretion [to file a downward departure motion for substantial as sistance] rests solely with the government” requires that the government give defen dant the opportunity to provide substantial assistance. 1 Because we conclude that the specific language of the agreement at issue did not place such an obl igation on the government, we affirm defendant’s sentence. Defendant-appellant Donald Courtois was arrested an d charged with possession of heroin with intent to distribute and conspiracy. Upon the government’s motion, he was detained without bond. Defendant subsequently agreed to plead guilty to the possession charge andto cooperate with the government, pursuant to a plea agreement. This agr eement obligated the government to “make the nature and extent of [defen dant’s] cooperation known” to the trial court at sentencing, and contained the following provision:-3-

At this time, the defendant has been de-briefed by federal agents and is making a good faith effort to cooperate in the g overnment’s continuing investigation. To insure defendant’s co ntinuing cooperation, this plea agreement specifically leave s potentially available all sentencing possibilities contemplatedby 18 U.S.C. § 3553(a), (b) and (e) and § 5K1.1 of the Sentencin g Guidelines. However, the discretion and decision to file any mo tion under 18 U.S.C. § 3553(e) (departure below the mandatory minimum sentence) or a motion pursuant to § 5K1.1 (downwarddeparture for substantial assistance) rests solely with the government. Attachment “A” to Appellant’s Opening Br. It is undisputed that defendant gave truthful information to the government, which included identifying several potential buyers of the seized heroin. The government stated at the sentencing hearing, howeve r, that it was unable to capitalize on the defendant’s cooperative efforts a nd eventually terminated the investigation for the following reasons: (1) it co uld not utilize defendant’s assistance due to the manner in which defendant int ended to distribute the heroin; (2) defendant was in custody without bond and there fore unable to complete any prearranged deliveries; and (3) due to time pressur es and a subsequent transfer to Honduras, the Tulsa DEA agent was unable to intervi ew the defendant and pursue the investigation after defendant was transferred t o a facility forty miles from Tulsa for security reasons. At sentencing, the government recommended that defe ndant be given the benefit of 18 U.S.C. § 3553(f), which permits the c ourt to impose a sentence of less than the ten-year statutory minimum if the defendant has truthfully2 Because the failure to object to an alleged breach of a plea agreement

does not waive the issue, we may review defendant’s claim de novo rather than for plain error. See Belt , 89 F.3d at 712-13. -4- provided all information and evidence he has concerning offenses that were part of the same course of conduct, common scheme, or pl an. The government also recommended that defendant be sentenced to the mini mum sentence in the range required by the Sentencing Guidelines based on his cooperation. The government did not, however, move for a downward departure pur suant to § 5K1.1 of the Sentencing Guidelines, because defendant had not ac tually rendered substantial assistance. The government acknowledged that this was due to circumstances beyond the defendant’s control. Defendant made no claim at sentencing that the plea agreement had been breached. On appeal, defendant argues that the government obl igated itself to give him the opportunity to render substantial assistanc e and that the government’s failure to do so denied him the benefit of his barg ain. See, e.g. , United States v. Laday , 56 F.3d 24, 26 (5th Cir. 1995); United States v. Ringling , 988 F.2d 504, 506 (4th Cir. 1993). Whether the government has br eached a plea agreement is a question of law which we review de novo. See United States v. Belt , 89 F.3d 710, 713 (10th Cir. 1996). 2 Ordinarily, the court’s review of the government’s decision not to move for a substantial assistance downward departure is limi ted to determining whether the-5-

decision was animated by an unconstitutional motive or was not rationally related to a legitimate government end. See Wade v. United States , 504 U.S. 181, 185-86 (1992). Even if a defendant undeniably renders sub stantial assistance, the government retains discretion to decide whether to request a § 5K1.1 downward departure. See id. at 185 (holding § 5K1.1 “gives the Government a po wer, not a duty, to file a motion when a defendant has subst antially assisted”). The government may bargain away this discretion, ho wever, in a plea agreement. See id. at 185; United States v. Price , 95 F.3d 364, 368 (5th Cir. 1996). We agree with the other circuits that have considered this issue and have found that whether a plea agreement unequivocally o bligates the government to provide defendant with the opportunity to provide s ubstantial assistance turns on the specific language of the agreement. Compare Laday , 56 F.3d at 25 n.1, 26 (holding language providing government “will file” motion if defendant provides substantial assistance obligates government to give defendant opportunity to do so) withPrice , 95 F.3d at 366, 368-69 (holding agreement committ ing decision to move for downward departure to “sole discretion” of government does not obligate government to give defendant opportunity t o provide substantial assistance); compare Ringling , 988 F.2d at 506 (holding government’s promise that it “ willmake known at the time of sentencing the full natu re and extent of Defendant’s cooperation” obligates government to interview defendant so that it-6-

can comment on the value of his cooperation) (empha sis added) withUnited States v. Lockhart , 58 F.3d 86, 88 (4th Cir. 1995) (holding that wher e plea agreement grants government discretion to seek assi stance and move for downward departure, agreement is not breached by fa ilure to provide defendant with an opportunity to render assistance, unless th is decision is motivated by impermissible animus or is not rationally related t o a legitimate government end). Here, the government promised Courtois that it woul d make his cooperation known to the court, which it did. Based on defendant’s cooperation, the government recommended both that he be exempt from the statutory ten-year minimum sentence and that he be sentenced at the bo ttom of the range required by the Sentencing Guidelines. The government did n ot, however, obligate itself to move for a § 5K1.1 downward departure. The lang uage of the agreement merely left this possibility open, expressly leavin g the decision to file such a motion in the sole discretion of the government. T he government decided to terminate the drug investigation, rendering defendant’s cooperation unnecessary. As defendant has not alleged that the government te rminated its investigation for impermissible or irrational reasons, he has allegedno ground for relief. The judgment is AFFIRMED.