                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                   November 28, 2012
                        UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
                                                                       Clerk of Court
                                      TENTH CIRCUIT


 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,
                                                         No. 12-3090
 v.                                            (D.C. No. 2:10-CR-20100-CM-7)
                                                           (D. Kan.)
 E.V.,

             Defendant-Appellant.


                                   ORDER AND JUDGMENT *


Before KELLY, TYMKOVICH, and GORSUCH, Circuit Judges.


         Defendant E.V. agreed to plead guilty to a charge of conspiracy to

distribute methamphetamine. In return, the government promised to recommend a

sentence reduction if E.V. offered substantial assistance in its investigation of the

conspiracy and other related matters. Ultimately, the government determined that

E.V. had failed to cooperate fully and refused to recommend a sentence reduction.




         *
         After examining the briefs and appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1(G). The
case is therefore ordered submitted without oral argument. This order and
judgment is not binding precedent except under the doctrines of law of the case,
res judicata and collateral estoppel. It may be cited, however, for its persuasive
value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
E.V. now appeals his sentence, contending that the government breached its

promise.

      As a threshold matter, we grant E.V.’s unopposed motion to seal the briefs

and the record in this appeal. E.V. has expressed a credible concern that his

family may be subject to retribution otherwise.

      To determine whether the government has breached a plea agreement, we

first examine the nature of the government’s promise, then evaluate it “in light of

the defendant’s reasonable understanding of the promise at the time the guilty

plea was entered.” United States v. Brye, 146 F.3d 1207, 1210 (10th Cir. 1998).

In this case, E.V. agreed to “cooperate fully and truthfully” by supplying

information (and testimony if needed) about “the offenses charged in the

indictment and all related conduct,” including identifying other individuals

related to the conspiracy and assets subject to forfeiture. Plea Agreement ¶ 6, R.

vol. 1 at 79. In return, the government’s promise was expressly conditioned on

its evaluation of the usefulness of E.V.’s information:

      The defendant acknowledges that substantial assistance has not yet
      been provided by the defendant . . . . [T]he determination as to
      whether he has provided substantial assistance and whether a motion
      pursuant to U.S.S.G. § 5K1.1 and/or Title 18, U.S.C. § 3553(e) will
      be filed, are left entirely and exclusively within the discretion of the
      United States. If a determination is made by the United States that
      the defendant has provided substantial assistance deserving such a
      downward departure, [the] United States will request that the Court
      consider reducing the sentence he would otherwise receive . . . .




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Plea Agreement ¶ 7, R. vol. 1 at 80 (emphasis added). E.V. could not reasonably

have understood this language as promising anything other than a discretionary

decision by the government.

      To be sure, a defendant may challenge even a discretionary refusal to file a

substantial assistance motion if the government’s decision was “not rationally

related to a legitimate government end.” United States v. Duncan, 242 F.3d 940,

947 (10th Cir. 2001). But E.V. admits, as he must, that the government has a

legitimate interest in rewarding only “those defendants who fully cooperate and

are genuinely forthcoming.” United States v. Dominguez Beltran, 184 F. App’x

799, 803 (10th Cir. 2006) (unpublished). And the government’s stated reasons for

its decision not to recommend a sentence reduction in this case are directly

related to that interest. The government says that E.V.’s account of the night of

his arrest has changed several times and remains inconsistent with surveillance

reports; that E.V. failed to provide information he had known for months; and that

the information he did eventually provide was either false or incomplete.

Certainly, E.V. disagrees with the government’s conclusions. Certainly, he would

prefer that the government consider other factors such as his participation in

interviews with investigators or other actions that he contends were helpful. But

it is equally certain the government considered the factors that it agreed to

consider — whether E.V. provided the assistance he promised (information and




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testimony) and whether that assistance was substantial — and rationally tied its

decision to those factors.

      Separately but relatedly, some (but not all) of our sister circuits will

provide relief to defendants who can show the government’s refusal to file a

substantial assistance motion under a discretionary plea agreement was the

product of “bad faith.” For our part, we have yet to decide the issue. See United

States v. Kovac, 23 F. App’x 931, 937-38 (10th Cir. 2001) (unpublished)

(discussing the inter-circuit and intra-circuit split and collecting cases); United

States v. Mendez, 272 F. App’x 703, 705 (10th Cir. 2008) (unpublished)

(acknowledging but declining to resolve the conflict). But even assuming —

without deciding — the viability of a bad faith theory, E.V. has not demonstrated

bad faith on the part of the government in this case. He stresses that before it

made its plea offer the government knew his story contradicted its own

surveillance reports. So, he reasons, at least this much can’t form a good faith

basis for refusing him a sentencing reduction. The difficulty is, the government

encountered many new evasions and failures to respond truthfully from E.V. after

the plea agreement. Neither has E.V. shown the sort of personal animosity by the

prosecutor that might suggest bad faith. He notes that the district court did once

caution the attorneys to check any personal differences at the courtroom door, but

this isolated and prosaic comment was directed as much to defense counsel as the

prosecutor and is, besides, hardly the stuff of which bad faith is made.

                                         -4-
      In an entirely different vein, E.V. argues the district court abused its

discretion in refusing to continue its evidentiary hearing on the substantial-

assistance issue to allow an additional witness to be presented. The district court

did, however, accept a proffer of the testimony E.V. sought to introduce. From

the proffer it is clear to us the missing testimony would not have advanced his

cause in any material way. At best, it would have established merely that he

attempted to assist the government in a manner not contemplated by the plea

agreement.

      E.V.’s unopposed motion to seal the briefs and record is granted, his

motion to supplement the record is denied, and the judgment of the district court

is affirmed.



                                               ENTERED FOR THE COURT



                                               Neil M. Gorsuch
                                               Circuit Judge




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