                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 08-3095
                                   ___________

United States of America,               *
                                        *
            Appellee,                   *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * Northern District of Iowa.
Randy Lee Schell,                       *
                                        * [UNPUBLISHED]
            Appellant.                  *
                                   ___________

                             Submitted: May 11, 2009
                                Filed: September 2, 2009
                                 ___________

Before RILEY, SMITH, and COLLOTON, Circuit Judges.
                            ___________

PER CURIAM.

       Randy Schell pled guilty, pursuant to a plea agreement, to conspiracy to
distribute and possess with intent to distribute 500 grams or more of
methamphetamine within 1000 feet of a protected location. The district court*
sentenced Schell to 120 months’ imprisonment. On appeal, Schell argues that the
government breached the plea agreement by failing to make a substantial-assistance
motion under 18 U.S.C. § 3553(e) or USSG § 5K1.1, and by not apprising the district


      *
        The Honorable Mark W. Bennett, United States District Judge for the Northern
District of Iowa.
court of the extent of his assistance. He also argues that the government’s failure to
disclose the extent of his assistance “circumvent[ed]” the district court’s consideration
of information under 18 U.S.C. § 3661. We affirm.

                                           I.

       In April 2008, a one-count information charged Schell with conspiracy to
distribute and possess with intent to distribute 500 grams or more of
methamphetamine within 1000 feet of a protected location, in violation of 21 U.S.C.
§§ 841(a)(1), 841(b)(1)(A), and 860(a). Schell entered into a plea agreement with the
government. Under the terms of the agreement, Schell promised to cooperate fully
with the government in the investigation of criminal activity. The plea agreement
provided that in the event Schell provided “substantial assistance,” the government
may, in its “sole discretion,” file a motion under 18 U.S.C. § 3553(e) and USSG
§ 5K1.1. The plea agreement also stated that “[a]t or before the time of sentencing,”
the government would “advise the court of any assistance, or lack thereof, provided
by [Schell].”

       In May 2008, Schell appeared before a magistrate judge and pled guilty to the
offense charged in the information. The magistrate judge issued a report
recommending that the district court accept Schell’s guilty plea, and the district court
later accepted the plea.

       After pleading guilty, Schell cooperated with the government by “debrief[ing]
on more than one occasion.” The government, however, decided not to file a
substantial-assistance motion. The government informed Schell of its decision a week
before the sentencing hearing, and then reiterated its position at the sentencing hearing
in September 2008. The government did not explain why it exercised its discretion
not to make a motion, and did not inform the court of assistance provided by Schell.
Schell’s counsel expressed disappointment at the government’s decision, stating that

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Schell had cooperated by debriefing and complied with his obligations under the plea
agreement. Schell’s counsel did not assert that the government breached the plea
agreement.

      The court calculated an advisory guideline range of 79 to 97 months’
imprisonment, which corresponded to a total offense level of 28 and a criminal history
category of I. Because the statutory minimum sentence applicable to Schell was 120
months’ imprisonment, however, his advisory guideline sentence became 120 months.
See USSG § 5G1.1(b). Observing that it was bound by the mandatory minimum
sentence, the court sentenced Schell to 120 months’ imprisonment and 10 years’
supervised release. Schell appeals.

                                         II.

       Schell first argues that the government breached the plea agreement by failing
to make a substantial-assistance motion on his behalf. Schell did not object in the
district court on this basis, so we review his claim under the plain-error standard.
Puckett v. United States, 129 S. Ct. 1423, 1428 (2009); see United States v. Olano,
507 U.S. 725, 733-36 (1993).

       A plea agreement is breached when a government promise that induces a plea
goes unfulfilled. Santobello v. New York, 404 U.S. 257, 262 (1971). Here, the
government did not break any promise by refusing to make a substantial-assistance
motion under § 3553(e) or § 5K1.1. The plea agreement expressly provided that the
government was not required to make a substantial-assistance motion, that it retained
“sole discretion” to decide whether to make any such motions, and that it made “no
promise, implied or otherwise,” that it would make any motions. Schell notes that the
court may review a prosecutor’s refusal to file a motion if the decision was based on
an unconstitutional motive, see Wade v. United States, 504 U.S. 181, 186 (1992), but
he has failed to make the “substantial threshold showing” required to obtain an

                                         -3-
evidentiary hearing on that point. See United States v. Perez, 526 F.3d 1135, 1138
(8th Cir. 2008). Schell never alleged an improper motive on the part of the
government, stating only that he was “disappointed” at the government’s decision,
because he debriefed “on more than one occasion” and “thought he complied with the
cooperation plea agreement.” Accordingly, Schell is not entitled to relief on this
claim.

       Schell next contends that the government breached the plea agreement by
failing to apprise the court of the extent of his cooperation with the government.
Because he did not raise this contention in the district court, we review his claim for
plain error. Puckett, 129 S. Ct. at 1428.

       Paragraph 16 of the plea agreement states, in pertinent part: “At or before the
time of sentencing, the United States will advise the court of any assistance, or lack
thereof, provided by the defendant in the ongoing investigation into criminal activity.”
Schell asserts that the government did not comply with its obligations under this
paragraph, because it never informed the court of the extent of his assistance. The
government counters that it was not required to provide any details about Schell’s
assistance, because it did not contest Schell’s summary of his assistance at the
sentencing hearing. Alternatively, the government asserts that even assuming it
violated its duty to apprise the court under paragraph 16, Schell’s substantial rights
were unaffected. We agree with the government’s latter argument.

       In the absence of a government motion under § 3553(e), the court was without
authority to impose a sentence below the 120-month statutory mandatory minimum.
See United States v. Freemont, 513 F.3d 884, 888 (8th Cir. 2008). Thus, even if the
government committed an obvious breach of the plea agreement by failing to inform
the court of Schell’s assistance, Schell has not shown a reasonable probability that the
error affected the outcome of the proceedings. See Olano, 507 U.S. at 733.



                                          -4-
       Schell’s final argument, raised for the first time on appeal, is that the
government’s failure to comply with paragraph 16 “circumvents” 18 U.S.C. § 3661.
That section, entitled “[u]se of information for sentencing,” states: “No limitation
shall be placed on the information concerning the background, character, and conduct
of a person convicted of an offense which a court of the United States may receive and
consider for the purpose of imposing an appropriate sentence.” Schell contends that
the government’s failure to explain why it decided against making a substantial-
assistance motion limited the court’s ability to consider information about his
“background, character, and conduct.”

      Section 3661 codifies the principle that a sentencing court has broad discretion
to consider a wide range of relevant evidence, including evidence that would be
inadmissible at trial, in making sentencing determinations. See Williams v. New York,
337 U.S. 241, 247 (1949). Schell makes no argument that the district court refused
to consider relevant evidence or exceeded its discretionary authority under § 3661 by
improperly considering certain evidence. His complaint is with the government’s
refusal to provide reasons to the court, but § 3661 imposes no obligation on the
government. There is thus no basis to conclude that the district court’s conduct of the
proceeding violated § 3661.

      Accordingly, the judgment of the district court is affirmed.
                      ______________________________




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