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The Honorable Donald E. O'Brien, United States District Judge for the

Northern District of Iowa.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 02-3820

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the Northern

* District of Iowa.

Bridget Sue McClure, *

*

Defendant-Appellant. *

___________

Submitted: June 11, 2003

Filed: August 1, 2003 

___________

Before BOWMAN, MURPHY, and BYE, Circuit Judges.

___________

MURPHY, Circuit Judge.

Bridget Sue McClure pled guilty to conspiracy to distribute 500 grams or more

of methamphetamine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), 846.

Although she faced a mandatory minimum sentence of ten years under 21 U.S.C. §

841(b)(1)(A), the district court1

 applied the safety valve and sentenced her under the

guidelines to 46 months imprisonment after lowering her range by crediting her for

acceptance of responsibility, being a minor participant, and being eligible for the
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safety valve. She appeals, arguing that the district court abused its discretion by not

ordering the government to file a substantial assistance motion. We affirm.

In late 2000, agents began investigating McClure and her boyfriend Kurt

Undine for their involvement in the Sioux City methamphetamine trade. Although

Undine was the focus of their interest, the investigation yielded substantial evidence

of McClure's involvement. Drugs were stored at and sold from her house, she

weighed and packaged methamphetamine for sale, collected money owed to Undine,

contacted him for buyers or sellers, and occasionally sold drugs when he was

unavailable. McClure was indicted for conspiracy to distribute 500 grams or more

of methamphetamine on August 21, 2001, and was released on an unsecured bond

following her arraignment. She later tested positive for both marijuana and

methamphetamine, however, and her pretrial release was revoked.

McClure entered into a twelve page plea agreement with the government. It

had 38 numbered paragraphs setting out its terms, and all were initialed by McClure.

In the first paragraph she indicated she understood that the offense to which she

would plead "is punishable by a mandatory minimum sentence of ten years." A

detailed cooperation agreement followed which required her to "fully and completely

cooperate ... in the investigation of criminal activity within the Northern District of

Iowa and elsewhere." If she were to fail to provide "complete and truthful

information at any ... time," she would breach the agreement. The United States

made "no promise" in return as to her sentence, but the parties stipulated as to some

possible guideline calculations the court might make. Paragraphs 14–20 addressed

a "POTENTIAL FOR DEPARTURE OR CREDIT" (section heading capitalized in

original). In this section it was spelled out that the government "may but shall not be

required to make" a motion for downward departure from the guidelines or the

statutory mandatory minimum sentence if McClure provided "'substantial assistance.'

This decision shall be in [its] sole discretion." The agreement specifically provided

that the United States had not promised that a departure motion would be made if
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substantial assistance were given and that it would make the assessment of whether

her cooperation amounted to substantial assistance.

After McClure pled guilty, she testified at the trial of Brett and Cory Kamerud

and before a grand jury which was considering other individuals. She was

subsequently granted pretrial release once again although the government had

opposed it for fear she would not be able to comply with the conditions of release

which could affect her sentence. The court had inquired whether the government

would not be "asking for any kind of lenient sentence" if she "messes up again," and

the prosecutor agreed: "If she screws up, she is looking at 10 years." McClure

subsequently tested positive for methamphetamine within two months of being

released.

Before the sentencing hearing, the government informed McClure that it was

not going to file a substantial assistance motion. She moved for an order to compel,

arguing that the government was punishing her for reasons unrelated to the value of

her assistance. The district court denied the motion. This left McClure facing a ten

year mandatory minimum sentence, but the government agreed not to oppose

application of the safety valve provision under both 18 U.S.C. § 3553(f) and United

States Sentencing Commission, Guidelines Manual, § 5C1.2 (2002) (USSG). The

district court found McClure qualified for the safety valve which allowed her to

bypass the mandatory minimum and to receive a two level reduction under the

guidelines. The district court also gave her another two level reduction as a minor

participant and a three level reduction for acceptance of responsibility. McClure was

then sentenced to 46 months.

She appeals, arguing that the government should have been required to file a

substantial assistance motion. A substantial assistance motion by the government

permits a sentence below a statutory mandatory minimum and a departure from the

guidelines. 18 U.S.C. § 3553(e); USSG §5K1.1. McClure contends that the district
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court should have granted her motion to compel because she had met her cooperation

responsibility but was being punished for using drugs while on pretrial release, citing

United States v. Anzalone, 148 F.3d 940, 941 (8th Cir. 1998), reinstated by 161 F.3d

1125 (8th Cir. 1998). McClure claims the prosecutor's answer to the court's question

at her release hearing is evidence of the government's bad faith.

A district court can review the government's decision not to file a substantial

assistance motion only if a defendant has made a "substantial threshold showing" that

the decision was "based on an unconstitutional motive" or was not "rationally related

to any legitimate Government end," Wade v. United States, 504 U.S. 181, 185–86

(1992), such as when its decision was made in bad faith, United States v. Marks, 244

F.3d 971, 975 (8th Cir. 2001). A plea agreement in which the government

specifically retains its discretion under § 5K1.1 will defeat a motion to compel unless

the defendant is able to show unconstitutional motive or bad faith. See United States

v. Amezcua, 276 F.3d 445, 447 (8th Cir. 2002); Marks, 244 F.3d at 974–75. We

review denial of such a motion for abuse of discretion. See United States v. Hyatt,

207 F.3d 1036, 1038 (8th Cir. 2000).

We have carefully examined the record in this case and find no showing of bad

faith. At the release hearing the government indicated that its reaction to a violation

on release would be to enforce the ten year mandatory minimum, but it later agreed

to imposition of the safety valve to take her below that ten year requirement despite

her violations. Moreover, the government did not object to McClure's guideline

reductions for safety valve and minor participant. The record shows that the

government's clear position was that it did not believe that her assistance had been

substantial and its only comment about her drug use was that it undercut her value as

a future witness. McClure relies on Anzalone, but in that case the government agreed

that the defendant had made a "substantial" showing of substantial assistance, 148

F.3d at 941, unlike the situation here. This case is like United States v. Wilkerson,

where we concluded that there is no basis for an order to compel if the government's
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refusal to make a departure motion is based on "its evaluation of the quality of [the

defendant's] assistance," its determination that the defendant has "not met [her] duty

under the plea agreement," and the agreement gives it the right to make that

assessment. 179 F.3d 1083, 1086 (8th Cir. 1999).

McClure argues that the government was unjustly enriched because it received

the benefit of her cooperation without making a substantial assistance motion, but

plea agreements such as hers will be enforced. See, e.g., Amezcua, 276 F.3d at 447;

Marks, 244 F.3d at 974–75. She also claims that the plea agreement is a contract of

adhesion that should be interpreted against its drafter, but it was not ambiguous. In

any event, McClure did not have to enter into the agreement. She was free to holdout

for better terms and could have proceeded to trial or pled guilty without an agreement.

See United States v. Hare, 269 F.3d 859, 862 (7th Cir. 2001). 

The plea agreement in this case spelled out in very specific detail that a

substantial assistance motion was only a potential benefit of McClure's cooperation

and that whether it would be made was within the sole discretion of the government.

The quality of the assistance given, and whether to use McClure in future

investigations and prosecutions, are matters within the discretion of the government

given the nature of the parties' contractual agreement. See United States v. Wolf, 270

F.3d 1188, 1190–91 (8th Cir. 2001); Wilkerson, 179 F.3d at 1085–86. McClure did

testify as part of her cooperation, but her testimony at the Kamerud trial was short and

cumulative of other witnesses. Not only did her grand jury testimony not lead to any

indictments, the prosecutor who presented it did not believe she was completely

truthful and stated he would not allow her to testify if there ever were a trial. The

government's determination that McClure's assistance was not substantial was well

within its discretion.

The district court did not abuse its discretion by denying the motion to compel

or an evidentiary hearing. The judgment is affirmed.
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A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.