           NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                      File Name: 14a0071n.06

                                    No. 12-4178                              FILED
                                                                        Jan 28, 2014
                    UNITED STATES COURT OF APPEALS                  DEBORAH S. HUNT, Clerk
                         FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                     )   ON APPEAL FROM THE UNITED
                                              )   STATES DISTRICT COURT FOR
      Plaintiff-Appellee,                     )   THE SOUTHERN DISTRICT OF
                                              )   OHIO
v.                                            )
                                              )
TERRANCE WHITE,                               )
                                              )
      Defendant-Appellant.                    )
                                              )

Before: BOGGS, NORRIS, and WHITE, Circuit Judges.

      HELENE N. WHITE, Circuit Judge.              Pursuant to a plea agreement,

Defendant Terrance White pleaded guilty of conspiring to distribute heroin and was

sentenced to 240 months in prison. White appeals, asserting that the Government

breached the plea agreement by not moving for a substantial-assistance downward

departure, U.S.S.G. § 5K1.1, and that his sentence is procedurally and substantively

unreasonable because mandatory minimum sentences are unconstitutional and void

as against public policy. We AFFIRM.

                                         I.

      During an investigation of heroin traffickers in the Cincinnati area in early

2011, the Drug Enforcement Administration learned that known-trafficker Edward



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Larkins was distributing multi-ounce quantities of heroin for redistribution. A 30-day

wiretap on Larkins’s cellphone led to the identification of others involved in the

heroin trade, including White. Between April and May 2011, White and Larkins

spoke on a number of occasions, and Larkins agreed to sell gram to multi-ounce

quantities of heroin to White.       Larkins and White possessed and distributed

approximately 2.5 kilos of heroin.

       A grand-jury indictment charged White with one count of conspiring to

distribute heroin, 21 U.S.C. § 846, and one count of using a telephone to facilitate the

purchase of heroin, 21 U.S.C. § 843(b). Pursuant to a sealed plea agreement under

which the Government reserved complete discretion to file a substantial-assistance

motion, U.S.S.G. § 5K1.1, White pleaded guilty to the conspiracy count. The

Government did not move for a downward departure at sentencing, having concluded

that information White provided “did not progress to the stage where it could be of

substantial assistance in the investigation and prosecution of another person, which

is the requirement for the 5K.”

       The district court sentenced White to the statutory mandatory minimum of 240

months, below the 262- to 327-month Guidelines range.

                                           II.

       White first argues that the Government modified the plea agreement such that White

needed only to “cooperate” to receive a § 5K1.1 substantial-assistance departure, that the

Government induced White to enter his guilty plea with that understanding, and that the


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Government’s refusal to move for a § 5K1.1 downward departure breached the modified plea

agreement. White contends that this court may review the Government’s conduct for breach

because the Government’s oral modification of the plea agreement bargained away its

discretion.

                                               A.

        Plea agreements “are essentially contracts.” Puckett v. United States, 556 U.S.

129, 137 (2009). The question whether the Government’s conduct violated a plea

agreement is reviewed de novo. United States v. Wells, 211 F.3d 988, 995 (6th Cir.

2000). But because White did not assert below that the Government modified or breached

the plea agreement, our review is for plain error. United States v. Mack, 729 F.3d 594, 607

(6th Cir. 2013). We may reverse only if we find error, that is “plain,” i.e., clear or obvious,

and that affects the defendant’s substantial rights. Id. “If these three conditions are met,

then we may exercise our discretion to notice the forfeited error, but only if we find the error

seriously affects the fairness, integrity, or public reputation of the judicial proceedings.” Id.

        When the government has not reserved discretion whether to make a motion

for a downward departure in a plea agreement, the government is obligated to so

move unless the defendant breaches the plea agreement. United States v. Villareal,

491 F.3d 605, 608–09 (6th Cir. 2007); United States v. Benjamin, 138 F.3d 1069,

1073 (6th Cir. 1998). But where “a plea agreement allocates complete discretion to

the government to consider whether a substantial assistance motion should be filed,

we may only review the government’s decision for unconstitutional motives.” United



                                               3
States v. Hawkins, 274 F.3d 420, 427 (6th Cir. 2001); see also United States v. Gates,

461 F.3d 703, 711 (6th Cir. 2006). “[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. Nor would additional but generalized allegations of improper motive.”

Wade v. United States, 504 U.S. 181, 185–86 (1992).

                                             B.

       White does not allege any unconstitutional motive. Rather, he asserts that the

Government bargained away its discretion whether to move for a § 5K1.1 departure

by modifying the plea agreement during a sidebar discussion at the change-of-plea

hearing by agreeing that White needed only to cooperate to be entitled to a

substantial-assistance departure.

       The written plea agreement provided that, in exchange for White’s guilty plea to

the conspiracy to distribute heroin charge, the Government would dismiss the remaining

count (using a telephone to facilitate the purchase of heroin), PID 1360, and amend the

information “pursuant to 21 U.S.C. § 851 to reflect one prior felony drug conviction which

will reduce his possible sentence to the mandatory minimum of 20 years to life in prison.”

R. 424 (Sealed/Available on Judge Point); PSR ¶¶ 7,17 and p. 36. The Government also

agreed to recommend a two-level adjustment for acceptance of responsibility, PID 1612, and

       to file, upon the defendant’s substantial assistance, a motion with the Court
       for a downward departure from the guideline sentence, stating that the
       defendant has made a good faith effort to provide substantial assistance in the
       investigation and prosecution of other persons who have committed offenses.
       The filing of such motion shall be in the sole discretion of the United States
       Attorney who shall solely determine if substantial assistance has been

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          provided. The defendant understands that if the motion is filed, it is not
          binding on the Court. Such a motion is authorized by § 5K1.1 of the
          Sentencing Guidelines and 18 U.S.C. § 3553(e). The defendant understands
          that if the Court does not follow the recommendations in the Plea Agreement,
          he does not have the right to withdraw his plea.

R. 424.

          Quoted below is the pertinent portion of the sidebar conference during which

White maintains the Government modified the plea agreement and bargained away

its discretion whether to file a § 5K1.1 downward-departure motion:

          MR. BRICHLER: [] the Plea Agreement in paragraph five indicates
          that Mr. White is a . . . career offender, but he has two prior felony drug
          convictions and that his sentence would be life if he were convicted as
          the Indictment stands now.
          ....
          The government has agreed . . . . at the time of this sentencing to amend
          the enhancement that we filed . . . . He will have one prior [felony drug
          conviction] instead of two . . . What that does is, that reduces the
          maximum penalty from life to 20 years to life.

                THE COURT: Okay. But there’s no understandings [sic] as to
          what Judge Dlott’s ultimate sentence would be?

          MR. BRICHLER: Anywhere between 20 years and life.
          ....
          Sentencing guideline level recommended is 32. That’s based upon the
          amount of drugs that the readily provable facts would have been
          attributed to Mr. White and his co-conspirators.
          By signing the Plea Agreement, he admits that he knowingly
          participated in the conspiracy that distributed between one and three
          kilos between April 11th and May 9th of this past year. He waives his
          right to a determination of the weight of the controlled substance.
          And then it speaks about . . . if he is found to be a career offender, his
          offense level would be 37.
          ....
          He would conceivably – if he is a career offender, he could conceivably
          have a higher range than the 20 years . . .


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....
And then his statements given to us are not to be taken into account in
the determination of –

       THE COURT: And then if Terrance helps you, is he going to be
eligible for another break?

MR. BRICHLER: That’s correct, Your Honor. Paragraph six [of the
plea agreement] states that the government has agreed to file, upon his
substantial assistance, a motion with the Court for a downward
departure from the guideline sentence stating that he made a good faith
effort to provide substantial assistance in the investigation and the
prosecution of other persons who have committed offenses.
        The filing of that motion would be in the sole discretion of the
United States Attorney who shall solely determine if substantial
assistance has been provided.
        He understands that if a motion is filed, it’s not binding on the
Court. It is authorized by section 5K1.1 of the Sentencing Guidelines
and 18 United States Code 3553(e).
        He understands that if the Court does not follow the
recommendations in the Plea Agreement, he does not have the right to
withdraw this plea
....
THE DEFENDANT: Can I say something?
THE COURT: Yeah, go ahead.
THE DEFENDANT: So you said something about Level 37. That’s
going to enhance my minimum?

MR. BRICHLER: No, no. . . . the mandatory minimum is going to be
20 years.

THE DEFENDANT: All right.

MR. BRICHLER: Now, if you’re a career offender and you’re a 37
instead of a 32, that just increases the range, the guideline range that’s
found by the Probation Department. It does not increase the mandatory
minimum. Okay? So your lawyer can argue any sentence down to the
20 years even if the guidelines are more than 20 years. If you cooperate
–
       THE COURT: If he cooperates, he can go below that though,
right?

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       MR. BRICHLER: He can go below 20 if he cooperates.

       THE DEFENDANT: That’s what I’m saying.                So if the 20 is
       mandatory, I can’t get it under 20 if I cooperate?

              THE COURT: No, no. If you cooperate, you can actually bring
       it under 20.

       THE DEFENDANT: Oh.

              THE COURT: Right. Is that right, guys?

       MR. BRICHLER: Right. That’s correct.

              THE COURT: That’s the way I read it.

       MS. CROSS: That’s correct.
       ....
       (Sidebar conference concluded.)

R. 555.

       AUSA Brichler read the rest of the plea agreement in open court and stated,

“[t]hat’s the entire Plea Agreement. There are no other provisions or understandings.

It’s signed by myself, by Mr. White and his attorney, Wende Cross.” PID 1613. The

district court asked White, “Did you sign that because that is your understanding of

the plea arrangement? That and the conversations we’ve had in court, that’s your

understanding of the plea arrangement you and your attorney have reached with the

government?” White answered “yes.” PID 1613. The district court asked White if

any other promises had been made to him, and he responded “no.” PID 1614.

Finally, the district court asked White, “In light of all the conversations we’ve had,



                                          7
Terrance, about the Plea Agreement and your rights, I’ll ask you for the last time:

How do you wish to plead to the charge . . . ?” White responded “guilty.” PID 1616.

                                             C.

       White’s contention that the Government modified the plea agreement at the

sidebar discussion during the change-of-plea hearing is belied by the record.

Paragraph six of the written plea agreement explicitly reserved to the United States Attorney

sole discretion to determine whether White had provided substantial assistance. R. 424 ¶ 6.

Rather than retreat from this provision, the AUSA read paragraph six of the plea agreement

verbatim into the record at the change of plea hearing. The mere fact that later in the hearing

the AUSA and district court used the term “cooperates” instead of “renders substantial

assistance” did not modify the plea agreement. See e.g., United States v. Race, 182 F.3d

919, 1999 WL 503573, at *3 (6th Cir. 1999) (table disposition) (noting that the prosecutor’s

use at the change of plea hearing of the term “will” instead of “may” when summarizing the

plea agreement “suggested a lack of discretion, [but] it hardly showed an intention to modify

the written agreement.”). “In order for there to be a later, binding modification of [the]

original plea agreement, there would have to be some indication that both parties intended

to create additional [or different] obligations.” United States v. Ricks, 398 F. App’x 135, 138

(6th Cir. 2010). There is no indication that the Government so intended here; there was no

meeting of the minds regarding a modification.

       Because the Government reserved complete discretion in the written plea agreement

and at the change-of-plea hearing, this court may only review the government’s decision not

to move for a substantial-assistance downward departure for unconstitutional motives,

                                              8
Wade, 504 U.S. at 185–86; United States v. Gates, 461 F.3d 703, 711 (6th Cir. 2006), and

White advances no such motive.

       We do not address White’s argument that he is entitled to specific performance

beyond noting that, if the Government were compelled to file a substantial-assistance

motion, the district court would not be able to depart below the 240-month statutory

minimum because White did not provide substantial assistance. See United States v.

Maduka, 104 F.3d 891, 894–95 (6th Cir. 1997) (Section 5K1.1 “requires a defendant to

provide substantial assistance in fact”).

                                              D.

       White’s remaining argument regarding the plea agreement–that it contains a material

ambiguity–is raised for the first time on appeal and is thus subject to plain-error review.

Mack, 729 F.3d at 607. White asserts that the written agreement required “either actual

substantial assistance or a good faith effort to provide substantial assistance,” and that since

two understandings of the written agreement are possible, extrinsic evidence may provide

insight into the parties’ intent. White maintains that the Government injected a third

standard at the change-of-plea hearing–mere cooperation, and it was thus impossible for him

to have understood his obligations under the plea agreement to earn the government’s 5K1.1

motion. Def.’s Br. at 30.

        White’s argument fails because, assuming without deciding that the plea agreement

is ambiguous, the ambiguity is not so obvious as to constitute plain error. See, e.g., United

States v. Cogley, 38 F. App’x 231, 235–36 (6th Cir. 2002) (noting that where the defendant

failed to preserve the alleged breach of the plea agreement in district court and there was no


                                               9
obvious breach of the plea agreement, “[e]ven were we to find the plea agreement . . .

ambiguous, ambiguity – by definition – cannot be so obvious as to constitute ‘plain error’

. . . . Plea agreements whose terms are subject to equally plausible interpretations . . . should

not be reversed on plain error review, because, absent demur by the defendant, the trial court

has no independent reason to believe a breach has occurred.”); United States v. Koeberlein,

161 F.3d 946, 952 (6th Cir. 1998) (noting that even assuming the plea agreement was

ambiguous, the defendant had notice and opportunity to object to a potential breach and there

was thus no plain error).

                                              III.

        White’s final argument is that his 240-month sentence is procedurally and

substantively unreasonable because mandatory minimum sentences are unconstitutional and

void as against public policy.

        A constitutional challenge to a sentence is a question of law we review de novo.

United States v. Hughes, 632 F.3d 956, 959 (6th Cir. 2011). Here, however, White brings

this challenge solely to preserve it for post-conviction proceedings, conceding that his

substantive due process and separation of powers arguments are foreclosed by the law of this

circuit. Def.’s Br. at 31-34. See Hughes, 632 F.3d at 962 (observing that enactments that

do not encroach on fundamental rights are endowed with a presumption of legislative

validity and that the burden is on the challenger to show that there is no rational connection

between the enactment and a legitimate governmental interest); United States v. Cecil, 615

F.3d 678, 696 (6th Cir. 2010) (noting that this court has flatly rejected the claim that

mandatory minimums unconstitutionally violate separation-of-powers principles, citing


                                               10
United States v. Odeneal, 517 F.3d 406, 414 (6th Cir. 2008)).

       White also asserts that widespread opposition to the statutory minimum mandatory

sentencing regime and recent bi-partisan legislation to amend 18 U.S.C. § 3553 introduced

in the United States Senate, the Justice Safety Valve Act of 2013, S. 619, 113th Cong. (1st

Sess. 2013), have rendered mandatory terms of imprisonment void as against public policy.

       We appreciate that a change in the mandatory-minimum sentencing regime may be

on the horizon, but White cites no authority to support that we have the power to invalidate

a federal criminal statute on the basis of public policy.

       White’s constitutional challenges to his mandatory minimum sentence are preserved

but rejected.

                                             IV.

       We AFFIRM the 240-month mandatory minimum sentence the district court

imposed.




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