In the
United States Court of Appeals
For the Seventh Circuit

No. 00-1189
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
CLAUDE H. ATKINSON,
Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Indiana,
Indianapolis Division.
No. 90-CR-113--Sarah Evans Barker, Judge.

ARGUED May 16, 2001--DECIDED July 30, 2001



  Before HARLINGTON WOOD, JR., COFFEY, and
WILLIAMS, Circuit Judges.

  HARLINGTON WOOD, JR., Circuit Judge. On
September 5, 1991, the appellant, Claude
H. Atkinson, pled guilty to conspiracy to
manufacture marijuana, in a quantity in
excess of 1000 plants, in violation of 21
U.S.C. sec.sec. 841(a)(1) and 846 and
currency structuring in violation of 31
U.S.C. sec. 5324(3) and 18 U.S.C. sec. 2.
Atkinson was originally sentenced to
twenty-five years imprisonment, but
following an appeal to this court, his
sentence was reduced to 210 months. See
United States v. Atkinson, 979 F.2d 1219
(7th Cir. 1992) ("Atkinson I"). Atkinson
made two more trips to this court, but
his sentence remained the same. In 1999,
after an amendment to the United States
Sentencing Guidelines (the "Guidelines"
or "U.S.S.G."), Atkinson was again re-
sentenced by the district court, and his
sentence was further reduced to 188
months. It is this new sentence that he
now appeals. For the reasons stated, we
affirm the sentence imposed by the
district court.

I.   Background

  The facts underlying this case are fully
laid out in Atkinson I, 979 F.2d 1219,
and it is unnecessary to repeat them
here. Atkinson was initially sentenced on
September 27, 1991. Atkinson’s plea
agreement with the government provided
inter alia:
6. In exchange for Atkinson entering a
plea of guilty as set forth in paragraph
1, above, and his cooperation as set
forth in paragraph 5, above, the
Government agrees at the time of
sentencing to file a motion pursuant to
Title 18, United States Code, Section
3553(a) and Section 5K1.1 of the
Sentencing Reform Act, which the parties
to this agreement established by statute
and the Sentencing Reform Act.
Atkinson has been advised and is aware
that under the Federal Sentencing
Guidelines, even without the enhancement
of his sentence under provisions of Title
21, United States Code, Sections 841 and
851, his criminal history places him in
the career offender category at level 37
and provides for a sentencing guideline
range of thirty years to life.
7. Pursuant to the provisions of Rule
11(e)(1)(C) of the Federal Rules of
Criminal Procedure, the parties to this
Agreement agree that the term of
imprisonment may not exceed a period of
thirty-five (35) years for the charges to
which the defendant, Claude Harrison
Atkinson, is pleading guilty. . . . The
Government recognizes that the defendant,
Claude Harrison Atkinson, is free to
argue for the sentence he deems to be
most appropriate. The defendant, Claude
Harrison Atkinson, recognizes the
Government intends to argue for a
sentence of a term of imprisonment of
thirty-five (35) years.
8. The parties recognize that the United
States of America is to receive complete,
total and truthful cooperation, not only
in the Southern District of Indiana, but
also in such other districts of the
United States of America which have or
will agree in writing to the terms of
this Final Plea Agreement. The Government
agrees, at the time of sentencing, to
advise the Court of the quantity and
quality of cooperation provided to the
Government by the defendant, Claude
Harrison Atkinson.

  At the 1991 sentencing, the district
court determined that Atkinson’s total
offense level was 38 with a
CriminalHistory Category of VI. This
determination resulted in a sentencing
guideline range of 360 months to life
imprisonment. The district court noted
that a cap of thirty-five years had been
agreed to and that the government had
filed a U.S.S.G. sec. 5K1.1 motion
requesting a downward departure. Judge
Barker granted the downward departure
and, noting Atkinson’s age and health
problems, imposed a sentence of twenty-
five years (300 months) imprisonment./1

  Atkinson appealed the sentence. On
appeal, the government conceded that the
sentence was wrong because one of
Atkinson’s prior felonies upon which the
court relied at sentencing did not count
toward career offender status under
U.S.S.G. sec.sec. 4B1.1 and 4B1.2.
Atkinson I, 979 F.2d at 1222. To correct
this mistaken assumption regarding
Atkinson’s criminal history, the
government argued that the court should
allow the reinstatement of charges
dismissed as part of the plea agreement.
Id. at 1222-23. Refusing to reform the
plea agreement, the panel vacated
Atkinson’s sentence and remanded the case
for re-sentencing. Id. at 1223.

  On remand, the district court determined
that Atkinson’s proper offense level was
35 and his Criminal History Category was
IV. This computation resulted in a
guideline range of 235 to 293 months
imprisonment. The court then heard
statements from both counsel regarding
the government’s sec. 5K1.1 motion. The
prosecutor characterized Atkinson’s
cooperation as "virtually flawless in
every respect" and summed up by stating,
"the government requests a downward
departure, but nonetheless requests a
substantial sentence." The district court
granted the government’s sec. 5K1.1
motion, holding that a proper departure
would be a three-level reduction in the
total offense level. The downward
departure resulted in an adjusted
guideline range of 168 to 210 months. The
district court, noting the seriousness of
his criminal conduct, sentenced Atkinson
to 210 months of imprisonment.

  Atkinson again appealed. See United
States v. Atkinson, 15 F.3d 715 (7th Cir.
1994). He argued that the district court
had abused its discretion by not granting
him a more substantial downward departure
and had misapplied the Guidelines. Id. at
717. We rejected his arguments and
affirmed the sentence imposed by the
district court. Id. at 721. Subsequently,
in January 1996, Atkinson filed a motion
to vacate his sentence under 28 U.S.C.
sec. 2255. The district court denied the
motion, and we affirmed in an unpublished
order.

  In 1999, Atkinson filed, pro se, a
motion for re-sentencing under 18 U.S.C.
sec. 3582(c)(2)/2 based on Amendment
516 to the 1995 Guidelines. At the time
Atkinson was sentenced, the Guidelines
equated one marijuana plant with 1000
grams of marijuana. Amendment 516 changed
the weight equivalency of a marijuana
plant from 1000 grams to 100 grams and
applied retroactively. See U.S.S.G. sec.
1B1.10. The court gave the government
thirty days to respond to the motion, and
Atkinson was then given twenty days to
reply.

  In its written response, the government
did not oppose Atkinson’s motion and
acknowledged the change in the
Guidelines. However, it urged the
district court to consider the terms and
general intent of the plea agreement in
making its sentencing determination. The
government insisted that both parties
were well aware that Atkinson would be
sentenced to a substantial term of
imprisonment in spite of his significant
cooperation in several prosecutions.
Also, the government pointed out that
Atkinson’s previous sentence involved a
discretionary downward departure for
cooperation under U.S.S.G. sec. 5K1.1.
Citing United States v. Wyatt, 115 F.3d
606, 610 (8th Cir. 1997), and United
States v. Vautier, 144 F.3d 756, 761
(11th Cir. 1998), the government asserted
that the district court was "not
obligated to honor its original
departure, or award a proportionately
equal departure." The government made
known to the court that it had "no
objection to a re-sentencing of the
defendant at the high end of the new
guideline range (188 months), but
object[ed] to any further departure from
that range."

  The district court did not hold a
hearing on the matter. Instead, on
November 19, 1999, the district court
ordered the Probation Office to prepare
a memorandum outlining what the guideline
range would have been had Amendment 516
been in effect at the time of Atkinson’s
original sentencing. The probation
officer, applying Amendment 516,
determined that Atkinson’s base offense
level would be 32. The memorandum then
noted that two levels should be added
pursuant to U.S.S.G. sec. 3B1.1(c),
resulting in an adjusted offense level of
34. Finally, the probation officer
determined that the offense level should
be reduced by three levels for acceptance
of responsibility under U.S.S.G. sec.
3E1.1(b), resulting in a total offense
level of 31. Given Atkinson’s Criminal
History Category of IV, the revised
guideline range was 151 to 188 months
imprisonment.

  In a written order dated December 28,
1999, the district court granted
Atkinson’s request for re-sentencing. The
order read in part as follows:

  The court has considered the fully
briefed arguments of the parties and the
expanded record and finds that had
Amendment 516 been in effect at the time
of sentencing the court would have
imposed an executed sentence of One
Hundred Eighty-Eight (188) months for
[C]ount I and would not have imposed a
fine as to Count I. The court further
finds no reason to conclude that the
original sentence should not now be
modified consistent with this
determination.
. . .

  The Probation Officer is directed to
prepare an amended judgment, identical in
all respects with the judgment entered on
February 5, 1993, except that the amended
judgment shall provide for the imposition
of an executed sentence of One Hundred
Eighty-Eight (188) months for Count I and
no fine for Count I.

  The relief to which Atkinson is entitled
does not require a further in-court
proceeding, but merely the ministerial
re-creation and re-issuance of the final
judgment. United States v. Tidwell, 178
F.3d 946 (7th Cir. 1999) . . . .
(emphasis in original). The amended
judgment was entered on January 4, 2000.
Atkinson filed this timely appeal, and
this court ordered that counsel be
appointed to represent Atkinson on
appeal./3

II. Analysis
A.Downward Departure Request: U.S.S.G.
sec. 5K1.1 Motion

  Atkinson contends that the district
court erred during re-sentencing by
failing to consider the government’s
U.S.S.G. sec. 5K1.1 motion for a downward
departure. He asserts that the district
court did not understand it had the
authority to grant a downward departure
at the time of his second re-sentencing.
We do not have jurisdiction to review a
district court’s decision to exercise its
discretion to deny a downward departure
under the Guidelines. United States
v.Albarran, 233 F.3d 972, 978 (7th Cir.
2000). However, we can review "a refusal
to depart that is based on an erroneous
legal conclusion about the court’s
authority to depart." United States v.
Poff, 926 F.2d 588, 591 (7th Cir. 1991).

  At first glance, it appears Atkinson’s
argument may have some merit. In its
December 28th order, the district court,
citing Tidwell, 178 F.3d 946, stated that
the re-sentencing did "not require a
further in-court proceeding, but merely
the ministerial re-creation and re-
issuance of the final judgment." Also,
Atkinson notes (1) the government’s sec.
5K1.1 motion was filed under seal, years
before the second re-sentencing; (2) the
Probation Office memorandum outlining the
effect of Amendment 516 did not address
the sec. 5K1.1 motion; and (3) the
district court never mentioned the motion
in its re-sentencing order. Among other
cases, Atkinson cites United States v.
Vahovick, 160 F.3d 395 (7th Cir. 1998),
for support. In Vahovick, we vacated the
defendant’s sentence because we could not
"conclude with assurance" that the
district court considered a specific
downward departure. Id. at 398-99.
Atkinson asserts that, based on the
record in the present case, it is
impossible to know with assurance that
the district court considered a downward
departure.

  We are unable to join in Atkinson’s
conclusion. "[A] claim that a seasoned
judge . . . didn’t understand his
discretion will rarely, if ever, be
successful when built merely on
inference. Article III judges are
presumed to know the law. . . ."
Albarran, 233 F.3d at 979 (internal
quotations and citations omitted).
Atkinson’s argument relies almost solely
upon inference. Upon examination, it
becomes clear that his argument is not
supported by the record. The government,
in its response to Atkinson’s request for
re-sentencing, advised the court that
Atkinson’s previous sentence involved a
discretionary downward departure under
sec. 5K1.1. Citing cases from the Eighth
and Eleventh Circuits, the government
asserted that the district court was "not
obligated to honor its original
departure, or award a proportionately
equal departure." Atkinson, in his reply
to the government’s response, further
addressed the sec. 5K1.1 issue, arguing
that the government’s stance on the issue
constituted a breach of the plea
agreement.

  In imposing the revised sentence, the
district court noted that it had
"considered the fully briefed arguments
of the parties and the expanded record."
Contrary to Atkinson’s assertions, the
district court was not "unaware that it
had the discretion to depart." Here,
although Judge Barker, the same judge who
has presided over all of Atkinson’s
sentencing hearings, never explicitly
stated that she considered the sec. 5K1.1
motion in connection with the second re-
sentencing, there is nothing in the
record to suggest that she believed that
she did not have the authority to depart
downward. She had in fact exercised this
discretion by granting downward
departures on two previous occasions in
this same case. The papers filed by the
government in connection with the second
re-sentencing made it clear that the sec.
5K1.1 departure was a matter that the
court needed to consider. We conclude
that the refusal to grant a downward
departure was an exercise of the court’s
discretion which cannot be reviewed by
this court. We dismiss this portion of
Atkinson’s appeal for lack of appellate
jurisdiction.

B.   Breach of Plea Agreement

  We turn next to Atkinson’s contention
that the government breached its plea
agreement with him by failing to remind
the court of the nature and value of his
cooperation and by specifically objecting
to any departure from the revised
guideline range. We believe Atkinson
sufficiently preserved this issue for
appeal, and therefore, our standard of
review is de novo. See United States v.
Schilling, 142 F.3d 388, 394 (7th Cir.
1998)./4
  "[P]lea agreements are contracts, and
their content and meaning are determined
according to ordinary contract
principles." United States v. Ingram, 979
F.2d 1179, 1184 (7th Cir. 1992). "[T]o
insure the integrity of the plea
bargaining process, the ’most meticulous
standards of both promise and performance
must be met by the government.’" United
States v. Jimenez, 992 F.2d 131, 134 (7th
Cir. 1993) (quoting United States v.
Bowler, 585 F.2d 851, 854 (7th Cir.
1978)). "The government must fulfill any
promise that it expressly or impliedly
makes in exchange for a defendant’s
guilty plea." Ingram, 979 F.2d at 1184
(citing Santobello v. New York, 404 U.S.
257, 261 (1971)). "[T]he strict
fulfilment of prosecutorial promises
emanates as a requirement from the
significant consequences of a guilty
plea." United States v. Ataya, 864 F.2d
1324, 1330 (7th Cir. 1988) (internal
quotations and citations omitted).
However, "[w]e review the language of the
plea agreement objectively and hold the
government to the literal terms of the
plea agreement." United States v.
Williams, 102 F.3d 923, 927 (7th Cir.
1996). To make a determination as to
breach, we "must examine whether there
has been a substantial breach of the plea
agreement, in light of the parties’
reasonable expectations upon entering the
agreement." Schilling, 142 F.3d at 395
(internal quotations and citations
omitted).

  Under the terms of the plea agreement,
the government was required to file a
sec. 5K1.1 motion for a downward
departure and to advise the court of the
nature and extent of Atkinson’s
cooperation. Clearly, the government
fulfilled this promise. Prior to
Atkinson’s initial sentencing on
September 27, 1991, the government filed
a sec. 5K1.1 motion. Also, the government
advised Judge Barker of Atkinson’s
cooperation at both the initial
sentencing and at the hearing on the
first re-sentencing. Finally, the
government reminded the court of the
pending sec. 5K1.1 motion in its papers
filed in connection with the second re-
sentencing.

  Therefore, we need only consider whether
the government’s recommendation of a
sentence at the top of the revised
guideline range (188 months) and its
specific objection to "any further
departure" from the revised range
constituted a breach of the plea
agreement. We believe that it does not.
The government expressly informed the
court of its pending sec. 5K1.1 motion.
The government had also informed Judge
Barker of the nature and extent of
Atkinson’s cooperation at the two
previous sentencing hearings. Based on
the terms of the plea agreement, Atkinson
was aware that the government intended to
argue for a sentence of thirty-five
years. The recommendation of a 188 month
sentence falls well below this sentencing
cap. After examining the terms of the
plea agreement together with the unique
facts of this case, we believe that the
government fulfilled all promises arising
out of the agreement. Atkinson’s claim of
error fails.
 III. Conclusion

  For the above stated reasons, we AFFIRM
the sentence imposed by the district
court.

FOOTNOTES

/1
The Judgment entered October 8, 1991 set out the
"Guideline Range as Determined by the Court" as
follows: Total Offense Level: 36, Criminal Histo-
ry Category: VI, and Imprisonment Range: 324 to
405 months. The Judgment noted that the court was
departing from the Guidelines "upon motion of the
government, as a result of defendant’s substan-
tial assistance" and "[a]s a result of the de-
fendant’s age and health, in consideration of the
length of the sentence ordered by the Court." The
Judgment reflected the sentence announced by the
court at the sentencing hearing, 300 months
imprisonment on Count 1 and sixty months impris-
onment on Count 4 to be served concurrent to the
sentence on Count 1.

/2
Section 3582(c)(2) provides:
(c) Modification of an imposed term of imprison-
ment.--The court may not modify a term of impris-
onment once it has been imposed except that--
. . .
(2) in the case of a defendant who has been
sentenced to a term of imprisonment based on a
sentencing range that has subsequently been
lowered by the Sentencing Commission pursuant to
28 U.S.C. sec. 994(o), upon motion of the defen-
dant . . . the court may reduce the term of
imprisonment, after considering the factors set
forth in section 3553(a) to the extent that they
are applicable, if such a reduction is consistent
with the applicable policy statement issued by
the Sentencing Commission.
18 U.S.C. sec. 3582(c)(2).

/3
Atkinson has also filed a pro se brief on appeal.

/4
While the district court did not expressly ad-
dress the issue, Atkinson, acting pro se, argued
as a part of his reply in the district court that
the government had breached the plea agreement by
requesting a sentence at the high end of the
revised guideline range and objecting to any
further departure. It is well-established that
pleadings submitted by pro se defendants should
be liberally construed. McNeil v. United States,
508 U.S. 106, 113 (1993).
