FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 08-30076 Plaintiff-Appellee,

D.C. No.

v.  1:06-cr-00155-RFCJUAN GABRIEL FLORES, AKA 1

Abraham Goytia, OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Montana

Richard F. Cebull, Chief District Judge, Presiding

Submitted January 21, 2009*

Seattle, Washington

Filed March 18, 2009

Before: Thomas M. Reavley,** Senior Circuit Judge,

Richard C. Tallman and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Reavley

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable Thomas M. Reavley, Senior United States Circuit

Judge for the Fifth Circuit, sitting by designation. 

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COUNSEL

Palmer A. Hoovestal, Hoovestal Law Firm, PLLC, Helena,

Montana, for the plaintiff-appellant.

James E. Seykora, Assistant United States Attorney, Billings,

Montana, for the defendant-appellee. 

OPINION

REAVLEY, Senior Circuit Judge: 

Defendant-Appellant Juan Flores appeals the sentence

imposed by the district court, asserting that the Government

wrongfully refused to move for a substantial assistance sentencing reduction under U.S.S.G. § 5K1.1, even though he

allegedly provided information useful to the investigation of

criminal activity, and that the district court erred in denying

his request for an evidentiary hearing to evaluate the extent of

his assistance. We affirm. 

I. Background

Defendant pleaded guilty to a charge of conspiracy to possess cocaine with intent to distribute, in violation of 21 U.S.C.

§§ 841 and 846, pursuant to a plea agreement in which the

Government promised to dismiss two other charges and to

recommend a sentencing reduction for Defendant’s acceptance of responsibility. The agreement also contemplated a

“[p]otential [d]eparture” for Defendant’s substantial assistance in the form of a motion under either U.S.S.G. § 5K1.1,

Fed. R. Crim. P. 35, or both. “Substantial assistance” is

defined in the agreement as “complete, truthful, forthright,

material, important, valuable and meaningful information.”

The Government’s obligations are prescribed in the agreement as follows: 

3528 UNITED STATES v. FLORES
The United States will consider and evaluate any

written proffer or nature of information and the recommendations of law enforcement. If the prosecution concludes that the assistance provided is

substantial, truthful, and complete, as required, a

departure motion determined by the government to

be appropriate under the circumstances will be made.

By this agreement the defendant is not offered or

promised that a departure motion, or any specific

type of motion, will be filed by the [G]overnment.

The defendant acknowledges that no promise has

been made and accepts this agreement that no such

motion will be filed if the [G]overnment determines

that the information is either untruthful, willfully

incomplete, of little value, or insubstantial. 

(second emphasis added). Defendant acknowledged at his

subsequent re-arraignment that the Government had neither

offered nor promised a departure motion under the plea agreement. 

It is undisputed that Defendant met with and provided

truthful information to two DEA agents and the prosecutor.

Based on this cooperation, Defendant stated in his presentence submission that he expected the Government to

move for a departure based on his substantial assistance.

However, the Government notified Defendant that it would

not file a § 5K1.1 motion. 

At his sentencing, Defendant asserted that the Government

had refused in bad faith to file a § 5K1.1 motion and

requested an evidentiary hearing at which he sought to prove

his substantial assistance through the testimony of the DEA

agents and the prosecutor. The prosecutor acknowledged that

Defendant had begun to cooperate, but explained that his

assistance was not substantial as of that date because the Government had not yet indicted or arrested anyone based on the

information he provided. The district court accepted the GovUNITED STATES v. FLORES 3529
ernment’s representation, and, relying on United States v.

Jones, 264 F. App’x 616 (9th Cir. 2008) (unpublished decision), denied Defendant’s request for an evidentiary hearing.

Without specifically addressing Defendant’s further request

that a reduction for substantial assistance was warranted under

18 U.S.C. § 3553(a) despite the Government’s failure to

request it, the court then imposed a within-Guidelines sentence of 170 months’ imprisonment. 

II. Discussion

We review the legality of Defendant’s sentence de novo,

but the district court’s factual findings regarding the Government’s reasons for refusing to file a § 5K1.1 motion are

reviewed for clear error. United States v. Murphy, 65 F.3d

758, 762 (9th Cir. 1995). “Whether the district court is

required to enforce a plea agreement is a question of law subject to de novo review.” United States v. Patterson, 381 F.3d

859, 863 (9th Cir. 2004). However, “there is a conflict in our

case law concerning the proper standard to be applied to a district court’s interpretation of a plea agreement.” United States

v. Transfiguracion, 442 F.3d 1222, 1227 (9th Cir. 2006) (citing conflicting authorities prescribing either de novo or clear

error review). We need not resolve this conflict, however,

because the result is the same under either standard. See

United States v. Franco-Lopez, 312 F.3d 984, 988-89 (9th Cir.

2002). 

Defendant contends that he provided information material

to the investigation of other criminal activity, and the district

court erred by deferring to the Government’s characterization

of his assistance as insubstantial merely because it had not

resulted in any arrests or indictments. In Defendant’s view,

the court should have granted his request for an evidentiary

hearing to determine whether his assistance was substantial

because the absence of any arrests or indictments are attributable to the Government’s own failure to act on the information he provided. Defendant further construes the

3530 UNITED STATES v. FLORES
Government’s inaction as a breach of its obligations under the

plea agreement. 

[1] Section 5K1.1 permits a district court to depart from the

Guidelines “[u]pon motion of the government stating that the

defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an

offense.” U.S.S.G. § 5K1.1. This provision empowers the

government to move for a departure when a defendant has

substantially assisted, but it imposes no duty to do so. See

Wade v. United States, 504 U.S. 181, 185, 112 S. Ct. 1840

(1992); United States v. Arishi, 54 F.3d 596, 597 (9th Cir.

1995). Even if a defendant has provided substantial assistance, we may not grant relief unless the government’s refusal

to file a § 5K1.1 motion was based on impermissible motives,

constituted a breach of a plea agreement, or was not rationally

related to a legitimate governmental purpose. See United

States v. Treleaven, 35 F.3d 458, 461 (9th Cir. 1994) (citing

Wade, 504 U.S. at 185-86, 112 S. Ct. 1840). Our precedent

also requires the Government to make a good faith evaluation

of a defendant’s assistance as of the date of sentencing to

determine the appropriateness of a § 5K1.1 motion. See

United States v. Quach, 302 F.3d 1096, 1102 (9th Cir. 2002).

Thus, the Government may not defer its evaluation of a defendant’s pre-sentence assistance by relying on the possibility of

a post-sentencing departure motion under Fed. R. Crim. P. 35.

See id. at 1102 (construing such a deferral as an improper

conflation of the temporal distinction between pre- and postsentence assistance under § 5K1.1 and Fed. R. Crim. P. 35,

respectively); see also United States v. Awad, 371 F.3d 583,

586, 589-90 (9th Cir. 2004) (holding the district court abused

its discretion by imposing a sentence based on the government’s incomplete evaluation of the defendant’s admittedly

substantial pre-sentence assistance and allowing the government to revisit the issue at a later date). But whether the assistance provided was actually substantial is a decision that

better rests with the prosecutor, not the court. United States v.

Burrows, 36 F.3d 875, 884 (9th Cir. 1994). 

UNITED STATES v. FLORES 3531
[2] Here, the Government evaluated Defendant’s assistance

and deemed it insubstantial because it had not resulted in any

arrests or indictments as of the time of sentencing. Although

the Government also noted that Defendant’s information

might eventually lead to arrests or indictments of others, this

observation does not detract from the fact that the Government fulfilled its limited obligation to timely assess the quality of his assistance. Having made the requisite determination,

the Government did not improperly defer its assessment of the

assistance provided, as it did in Awad and Quach. 

[3] The Government’s broad discretion to determine the

appropriateness of a substantial assistance motion is also

embodied in the plea agreement. As Defendant acknowledged, both in the agreement and orally at his re-arraignment,

the agreement plainly disclaimed any obligation or promise

on the part of the Government to file a substantial assistance

motion, and further cautioned that no such motion would be

filed if the Government were to find the information to be

“untruthful, willfully incomplete, of little value, or insubstantial.” Because these terms vest discretion in the Government

to evaluate the quality of Defendant’s assistance, the most

Defendant could expect was a good faith evaluation of the

information he provided. This is what he received. In a recent

unpublished case, we construed identical language in a plea

agreement not to require a § 5K1.1 motion when the Government deemed the information provided to be “of little value

because it did not result in any arrests, indictments, or convictions.” Jones, 264 F. App’x at 617. We similarly conclude

here that the Government acted within its express discretion

under the agreement when it determined that the absence of

arrests, indictments, or convictions resulting from Defendant’s information rendered his assistance insubstantial as of

the time of sentencing. The Government’s refusal to move for

a substantial assistance reduction therefore did not breach the

plea agreement. 

[4] Finally, Defendant’s insistence that he provided substantial assistance does not entitle him to an evidentiary hear3532 UNITED STATES v. FLORES
ing. See Wade, 504 U.S. at 186, 112 S. Ct. 1840 (“[A] claim

that a defendant merely provided substantial assistance will

not entitle a defendant to a remedy or even to discovery or an

evidentiary hearing.”). To warrant a hearing, Defendant must

make a substantial threshold showing that the Government’s

refusal to file a § 5K1.1 motion was unconstitutional, arbitrary, or breached the plea agreement. Treleaven, 35 F.3d at

461. As noted above, the Government acted within its discretion under the plea agreement when it found Defendant’s

assistance insubstantial and accordingly refused to move for

a reduction. Defendant has also not alleged, much less shown,

that the Government’s decision was based on an unconstitutional motive. He merely asserts that the Government’s failure

to arrest or indict anyone based on the information he provided suggests arbitrariness or bad faith. That the Government’s investigation had not culminated in arrests or

indictments as of the time of sentencing, by itself, does not

suggest the presence of an illicit motive, and Defendant failed

to present any evidence substantiating the type of misconduct

from which bad faith may be inferred. See, e.g., United States

v. Khoury, 62 F.3d 1138, 1141-43 (9th Cir. 1995) (concluding

the Government’s refusal to file a § 5K1.1 motion in retaliation for the defendant’s exercise of his right to jury trial permitted the court to exercise its own discretion to grant a

downward departure); Treleaven, 35 F.3d at 461-62 (holding

the defendant was entitled to have the district court consider

a possible substantial assistance departure in spite of the Government’s failure to file a § 5K1.1 motion because of the Government’s misconduct in communicating ex parte with the

defendant and subpoenaing his grand jury testimony without

informing his counsel, thereby impeding his ability to negotiate for a departure motion). Indeed, the Government may

properly base its decision not to file a § 5K1.1 motion on

nothing more than “its rational assessment of the cost and

benefit that would flow from moving,” regardless of the assistance rendered. Wade, 504 U.S. at 187, 112 S. Ct. 1840.

Accordingly, the district court did not err in deferring to the

UNITED STATES v. FLORES 3533
Government’s stated reason for refusing to file a § 5K1.1

motion or denying Defendant’s request for a hearing to prove

the quality of his assistance. 

AFFIRMED. 

3534 UNITED STATES v. FLORES