                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 10a0630n.06

                                            No. 09-5040                                   FILED
                                                                                      Sep 28, 2010
                           UNITED STATES COURT OF APPEALS                       LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                         )
                                                  )
       Plaintiff-Appellant,                       )
                                                  )    ON APPEAL FROM THE UNITED
v.                                                )    STATES DISTRICT COURT FOR THE
                                                  )    EASTERN DISTRICT OF TENNESSEE
NORMAN RICKS,                                     )
                                                  )
       Defendant-Appellee.                        )


       Before: BATCHELDER, Chief Judge; MOORE, and COOK, Circuit Judges.


       COOK, Circuit Judge. The United States appeals the district court’s decision to sentence

Norman Ricks below the statutory mandatory minimum. Finding no evidence that the government

obligated itself to pursue a downward departure, we reverse the district court’s order denying the

government’s request to withdraw its § 5K1.1 motion, vacate Ricks’s sentence, and remand for

resentencing.


                                                  I.


       Relying on audio-recorded sales Ricks made to various informants over a three-year period,

the government charged Ricks with five criminal counts related to his distribution of cocaine base.

Ricks signed a written plea acknowledging his guilt and agreeing to provide information about other

criminal activity. The agreement contained a merger clause stating that it “constitute[d] the full and
No. 09-5040
USA v. Ricks

complete agreement and understanding between the parties.” Rather than obligating the government

to press for a downward departure from the statutory mandatory minimum sentence under U.S.S.G.

§ 5K1.1, it provided an option that “[a]t the time of sentencing, the United States may bring to the

Court’s attention the nature, extent, and value of the defendant’s forthrightness,” and further

enunciated that “[t]his information will be provided to the Court so that it may be considered in

determining a fair and appropriate sentence under the facts of the case.”


       Following Ricks’s guilty plea, the Presentence Investigation Report assigned him an adjusted

offense level of 27 (which included a 3-point reduction for acceptance of responsibility) and a

criminal history category of VI, resulting in an advisory Guidelines range from 130 to 162 months.

Title 21 U.S.C. § 841(b)(1)(A) required the court to impose a minimum sentence of 10 years in

prison unless the government requested a downward departure for substantial assistance under §

5K1.1. The court rescheduled Ricks’s sentencing several times at the urging of both parties because

Ricks continued to provide helpful information, and when Ricks asked the government to file a §

5K1.1 motion, the government agreed.


       After filing the substantial assistance motion, however, the government learned that Ricks

misled investigators as to his involvement in a murder. Concluding that Ricks breached one of the

plea agreement’s terms—“to be fully and completely truthful”—the government moved to withdraw

the § 5K1.1 motion. Ricks objected to the withdrawal, arguing that the government bound itself to

pursue the departure, and thus could renege only upon establishing Ricks’s breach by a

preponderance of the evidence. The district court agreed that the written plea agreement did not

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USA v. Ricks

obligate the government to seek the departure. It decided, however, that the parties formed a second,

oral contract after executing the written plea by which the government agreed to press for a

substantial-assistance-based downward departure on Ricks’s behalf.


       No record evidence supports the district court’s finding. In fact, neither party so argued. The

court nevertheless discerned a second agreement existed, explaining:


       I find that notwithstanding the integration clause in the plea agreement dated January
       8th, 2007, that the subsequent course of dealings between Mr. Ricks and the
       government, which is evidenced at least by the government’s motion or the filing of
       [the] government’s motion for a 5K1.1 substantial assistance departure, and,
       presumably, by at least another document which was the Kastigar letter that’s not
       present here in the court, evidences that the subsequent dealings . . . between the
       government and Mr. Ricks was contractual in nature. . . . [A]nd the contract dealt
       with the providing of information relating to other criminal activity between Mr.
       Ricks [and] the government. And there was an acceptance and rejection and
       adequate consideration or promissory estoppel, but that one of the terms of that
       contract, which was partially written and partially oral in nature, was that Mr. Ricks
       provide truthful information to the government.


With this the court concluded that the government orally bound itself to pursue the substantial

assistance motion and, therefore, could not withdraw it absent a showing that Ricks breached his

obligation to provide truthful information. In response to the government’s contention that no such

oral agreement existed, the court asked, “Well, then what obligation did Mr. Ricks have to do

anything after execution of the first contract?” Beyond this speculation, the court failed to cite any

evidence to support its factual finding.




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USA v. Ricks

       After hearing evidence about the veracity of the information Ricks provided, the court held

that the government failed to prove by a preponderance of the evidence that Ricks breached the plea

agreement, accordingly denied the government’s request to withdraw its substantial assistance

motion, and sentenced Ricks to 100 months in prison—20 months fewer than the statutory

mandatory minimum.


       The government appealed, contending that the district court clearly erred when it found,

without any evidentiary support, that a second, oral agreement prevented the government from

withdrawing its substantial assistance motion.


                                                 II.


       Traditional and well-settled principles of contract law govern our interpretation and

enforcement of plea agreements. United States v. Robison, 924 F.2d 612, 613 (6th Cir. 1991).

“There can be no contract without a ‘meeting of the minds’. Restatement (Second) of Contracts §

17 comment c (1981). Whether or not there was a ‘meeting of the minds’ depends, of course, on

what the parties to the plea agreement intended.” Robison at 614.


       The existence of an enforceable plea agreement is a question of fact, which we review for

clear error. United States v. Lukse, 286 F.3d 906, 909 (6th Cir. 2002). If the terms of a plea

agreement are ambiguous, their meaning rests on a determination of the intent of the parties which,

as a question of fact, we review for clear error. Id. Where two permissible views of the evidence

exist, the district court’s choice between them does not constitute clear error. Anderson v. Bessemer

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USA v. Ricks

City, 470 U.S. 564, 573–74 (1985). But if we are “left with the definite and firm conviction that a

mistake has been committed” when viewing the record as a whole, we may hold the district court’s

factual determination clearly erroneous. Harlamert v. World Finer Foods, Inc., 489 F.3d 767, 771

(6th Cir. 2007) (internal quotation marks and citation omitted). If, however, the terms are

unambiguous, their construction is a question of law, which we review de novo. United States v.

Quesada, 607 F.3d 1128, 1131 (6th Cir. 2010).


A. Written Plea Agreement


       We first examine the district court’s determination that the alternating voluntary and

compulsory language of the plea agreement—with its “may” present Ricks’s forthrightness to the

court, and its “will” provide information for fair sentencing—did not compel the government to

pursue a downward departure. Where a plea agreement requires the government to seek a downward

departure in exchange for the defendant’s substantial assistance, the government must do so absent

a showing by a preponderance of the evidence that the defendant breached the agreement. Lukse,

286 F.3d at 910–12. But no case stands for the proposition that the language in Ricks’s plea

agreement—which fails to mention a § 5K1.1 motion at all—binds the government to recommend

a departure. Moreover, even if we interpreted the agreement in Ricks’s favor at every turn, it

required the government at most to present information regarding Ricks’s forthrightness to the court

in some form, not necessarily by pressing for a downward departure. The district court correctly

concluded that the written agreement failed to require that the government file or pursue a § 5K1.1

motion.

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USA v. Ricks

B. Contract Modification


       We next review the district court’s holding that the parties formed a second, oral contract,

binding the government to its downward departure request unless it could show that Ricks breached

the agreement first. Because no record evidence supports finding that the parties formed an oral

contract, we view the holding as clear error. It seems the district court deduced its existence simply

from Ricks’s continued cooperation after signing his written plea and the government’s decision to

file a downward departure motion. Yet, not even Ricks argued that he had such an oral agreement

from the government. When the district court told Ricks’s attorney that he must convince the court

“that there was either a completely separate subsequent agreement, or . . . somehow get around that

integration clause,” Ricks’s attorney contended only that the government’s filing of a § 5K1.1

motion amended the initial plea agreement’s terms to require the government to advocate for the

departure rather than withdraw its recommendation. As the government notes, if neither party

believed that an oral contract existed, the requisite meeting of the minds could not have occurred.

And the court acknowledged as much when it commented that to enforce the alleged contract, the

court must flesh out its oral terms.


       Ricks’s argument that the government’s initial downward departure motion amended the

written plea agreement’s terms also fails. In order for there to be a later, binding modification of

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

to create additional obligations. Otherwise, there could be no “meeting of the minds.” Robison, 924

F.2d at 614. The § 5K1.1 motion does not evidence such intent. All it demonstrates is that the

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USA v. Ricks

government decided to exercise its discretion and move for a downward departure. Nothing about

this motion suggests that the government in any way felt bound to file a motion or thought itself

precluded from later withdrawing the motion.


       Because no evidence of a second, oral agreement exists and because the government’s filing

of a § 5K1.1 motion cannot suffice to modify Ricks’s written plea, the district court clearly erred

when it found the government obligated to recommend the departure.


                                               III.


       The district court correctly held that the written plea agreement did not require the

government to seek a downward departure, but clearly erred when it found that a subsequent contract

modification occurred. Accordingly, we reverse the court’s order denying the government’s request

to withdraw its § 5K1.1 motion, vacate Ricks’s sentence, and remand for resentencing.




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