                                                                   [DO NOT PUBLISH]

                      IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________               FILED
                                                                  U.S. COURT OF APPEALS
                                            No. 11-10561            ELEVENTH CIRCUIT
                                        Non-Argument Calendar       NOVEMBER 15, 2011
                                      ________________________           JOHN LEY
                                                                          CLERK
                           D.C. Docket No. 6:08-cr-00270-GAP-KRS-2



UNITED STATES OF AMERICA,

llllllllllllllllllllllllllllllllllllllll                                  Plaintiff-Appellee,

                                             versus

LENARD KILPATRICK,
a.k.a. Nard,
a.k.a. KP,
a.k.a. "P",
a.k.a. Meech,

lllllllllllllllllllllllllllllllllllllll                            lDefendant-Appellant.

                                     ________________________

                           Appeal from the United States District Court
                               for the Middle District of Florida
                                 ________________________

                                           (November 15, 2011)

Before MARCUS, MARTIN and FAY, Circuit Judges.
PER CURIAM:

      Lenard Kilpatrick appeals his convictions and sentences for possession with

intent to distribute cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C);

conspiracy to possess with intent to distribute 50 or more grams of cocaine base,

in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A)(iii), 846; possession with intent

to distribute 50 or more grams of cocaine base, in violation of 21 U.S.C.

§ 841(a)(1), (b)(1)(A)(iii); and possession with intent to distribute 5 or more grams

of cocaine base, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(B)(iii). He argues

that the district court should have ordered the government to file a motion under

U.S.S.G. § 5K1.1 for his substantial assistance. For the reasons set forth below,

we affirm.

                                          I.

      Kilpatrick pleaded guilty pursuant to a written plea agreement, under which

he agreed to cooperate fully with the government in other investigations and “to

testify, subject to a prosecution for perjury or making a false statement, fully and

truthfully before any federal court proceeding or federal grand jury in connection

with the charges in this case and other matters.” The government agreed to

consider whether any cooperation completed before sentencing qualified as

substantial assistance such that a motion for a downward departure under U.S.S.G.

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§ 5K1.1, for a sentence below the statutory minimum pursuant to 18 U.S.C.

§ 3553(e), or both would be warranted. Kilpatrick understood that the government

retained the sole discretion to determine whether to file a substantial assistance

motion, and he agreed not to challenge its decision.

       At his plea colloquy, Kilpatrick was placed under oath. The magistrate

judge reviewed Kilpatrick’s agreement to cooperate with the government and the

government’s agreement to consider whether such cooperation warranted the

filing of a § 5K1.1 motion. The magistrate emphasized that the government, not

the court, would determine whether Kilpatrick’s cooperation amounted to

substantial assistance. Furthermore, the magistrate explained that Kilpatrick could

not challenge a decision by the government not to file a § 5K1.1 motion.1

Kilpatrick testified that this information was clear to him, and he pleaded guilty.

The district court accepted the guilty plea.

       At the sentencing hearing, Kilpatrick, through counsel, noted that he was

cooperating in a state court trial that had been continued several times. The

government stated that it would not consider filing a § 5K1.1 motion until

Kilpatrick’s cooperation was complete. The court continued the sentencing



       1
        On appeal, the government does not argue that this provision in the plea agreement
precludes Kilpatrick’s appeal of its decision not to file a § 5K1.1 motion.

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hearing. Before the sentencing continued, the court held a hearing to review, in

part, whether the government planned to file a § 5K1.1 motion. The government

stated that it did not intend to do so because Kilpatrick had perjured himself while

testifying in the state court trial.

       When the sentencing recommenced, Kilpatrick argued, through counsel,

that he had cooperated by testifying in a codefendant’s trial and in a state court

trial. He believed that he had cooperated fully and that the government should

have filed a § 5K1.1 motion. Kilpatrick then addressed the court, stating that he

had testified truthfully in the federal case. As to the state court case, he had sold

the defendant powder cocaine, and he testified as such. However, the state had

wanted him to testify that he sold the defendant crack cocaine because the

defendant had been found with crack cocaine. Kilpatrick had cooperated, and

when the government refused to file a § 5K1.1 motion, he believed that it violated

the plea agreement. The government was refusing to file the motion based on

what happened in the state court case. The government stated that it agreed that

Kilpatrick had testified truthfully in his codefendant’s federal trial. It did not file a

§ 5K1.1 motion, however, because it believed that Kilpatrick had perjured himself

in the state court trial. It based that opinion on Kilpatrick’s written statements, his

state court trial testimony, and jail call recordings in which Kilpatrick had

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“essentially bragged” that he had sunk the state court case.

      The court began its analysis by interpreting the plea agreement, noting that

Kilpatrick had testified truthfully in the federal case. The court stated that it was

possible that Kilpatrick was obligated to cooperate in state prosecutions under his

plea agreement, pointing to the section in the agreement where Kilpatrick agreed

“to fully cooperate with the United States in the investigation and prosecution of

other persons.” However, it was unsure what the government’s interest was in

state prosecutions. Thus, although it was “questionable” as to whether Kilpatrick

had fully cooperated as required by the plea agreement, the court did not “have

enough facts to make a finding as to whether” he was obligated to testify truthfully

in the state case. Therefore, the court had to consider the law governing plea

agreements and the government’s refusal to file a § 5K1.1 motion.

      The court then stated that Eleventh Circuit precedent did not require the

government to exercise good faith in deciding whether to file a § 5K1.1 motion.

Rather, the government was only prohibited from considering a constitutionally

impermissible ground. There was no showing that the government acted in bad

faith or that it based its decision on constitutionally impermissible grounds in this

case. The court thus denied Kilpatrick’s request for specific performance.

Kilpatrick then addressed the court, arguing that after he had testified in his

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codefendant’s federal trial, the government had not filed a § 5K1.1 motion. He

had told his attorney that he did not want to testify in the state court case. The

court stated that it would not change its ruling because the government was not

obligated to file a § 5K1.1 motion. The court then sentenced Kilpatrick to 168

months’ imprisonment on Counts 1, 2, 3, and 5, to run concurrently.

                                          II.

      We review de novo the question of whether the government breached a plea

agreement. United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004).

Under U.S.S.G. § 5K1.1, the government may file a motion informing the court

that the defendant provided substantial assistance in the investigation or

prosecution of another individual. U.S.S.G. § 5K1.1. If the government files such

a motion, the court may impose a downward departure under the Sentencing

Guidelines. Id. The government has the power, but not a duty, to file a § 5K1.1

motion. Wade v. United States, 504 U.S. 181, 185, 112 S.Ct. 1840, 1843, 118

L.Ed.2d 524 (1992). A district court may review the government’s decision not to

file a § 5K1.1 motion only if it “was based on an unconstitutional motive,” such as

“the defendant’s race or religion.” Id. at 185-86, 112 S.Ct. at 1843-44. The

government also may not refuse to file a § 5K1.1 motion for reasons not rationally

related to a legitimate governmental purpose. Id. at 186, 112 S.Ct. at 1844. The

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defendant, however, must make more than “generalized allegations of improper

motive” to obtain relief. Id.

      Where a plea agreement merely required the government to consider filing a

§ 5K1.1 motion, the district court reviewed that provision with the defendant and

ensured that the defendant understood the provision, and there was no evidence

that the government did not consider the defendant’s assistance, we declined to

analyze the government’s decision using principles of contract interpretation

because the government did all that it had promised to do. United States v.

Forney, 9 F.3d 1492, 1499 n.2 (11th Cir. 1993). In Forney, we also declined to

consider whether the government’s decision was made in bad faith because the

defendant had not raised the issue before the district court. Id. at 1500.

Specifically, at his sentencing hearing, he did not assert that the government made

its decision based on an unconstitutional or discriminatory ground. Id. at 1500

n.3. Furthermore, where the government promised to consider filing a § 5K1.1

motion, as opposed to promised to file a § 5K1.1 motion, the government’s

decision was “not reviewable for arbitrariness or bad faith.” Id. at 1502 n.5

(quotation omitted).

      Here, the court correctly declined to order the government to file a § 5K1.1

motion. The government considered whether Kilpatrick’s cooperation amounted

                                          7
to substantial assistance, which was all that it was required to do under the plea

agreement. According to the plea agreement and Kilpatrick’s testimony, he

understood that whether the government would file a § 5K1.1 motion was solely

within its discretion. Moreover, under Forney, we need not review the

government’s decision using principles of contract interpretation. Like in Forney,

Kilpatrick’s plea agreement only required the government to consider filing a

§ 5K1.1 motion, the magistrate reviewed that provision of the plea agreement with

Kilpatrick and ensured that he understood the provision, and there is no evidence

that the government did not consider whether Kilpatrick’s assistance amounted to

substantial assistance. See id., 9 F.3d at 1499 n.2. Therefore, we decline

Kilpatrick’s request to analyze the government’s decision using principles of

contract interpretation because the government did all that it promised to do. See

id.

      Next, we decline to consider Kilpatrick’s argument that the government

made the decision not to file a § 5K1.1 motion in bad faith. Like the defendant in

Forney, Kilpatrick did not argue at sentencing that the government based its

decision on an unconstitutional or discriminatory ground. See id. at 1500 n.3.

Rather, he argued that the government impermissibly based its decision on his

actions in a state court case even though his plea agreement only required him to

                                          8
testify truthfully in federal proceedings. Nonetheless, Kilpatrick is not entitled to

relief. The court found that the agreement could be broad enough to include the

state prosecution, pointing to that part of the plea agreement where Kilpatrick

agreed “to fully cooperate with the United States in the investigation and

prosecution of other persons.” In fact, Kilpatrick himself first brought to the

court’s attention his cooperation in the state case, apparently seeking consideration

of that cooperation from the government in connection with the potential § 5K1.1

motion. The government then replied that it would not consider filing a § 5K1.1

motion until Kilpatrick’s cooperation was complete. Finally, Kilpatrick has not

made a specific allegation that the government based its decision on an

unconstitutional ground, such as his race or religion. See Wade, 504 U.S. at

185-86, 112 S.Ct. at 1843-44.

      For the foregoing reasons, we affirm Kilpatrick’s convictions and sentences.

      AFFIRMED.




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