                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0249p.06

                       UNITED STATES COURT OF APPEALS
                                        FOR THE SIXTH CIRCUIT
                                          _________________


                                                      X
                                 Plaintiff-Appellee, -
 UNITED STATES OF AMERICA,
                                                       -
                                                       -
                                                       -
                                                           No. 05-6838
          v.
                                                       ,
                                                        >
 ALDRICH S.V. VILLAREAL, a.k.a. Rigoberto O.           -
                                                       -
                                                       -
 Barrios,

                             Defendant-Appellant. -
                                                       -
                                                       -
                                                      N
                       Appeal from the United States District Court
                   for the Eastern District of Tennessee at Greeneville.
                     No. 04-00079—J. Ronnie Greer, District Judge.
                                            Argued: May 31, 2007
                                    Decided and Filed: June 29, 2007
            Before: MOORE and GRIFFIN, Circuit Judges; McKINLEY, District Judge.*
                                             _________________
                                                  COUNSEL
ARGUED: Clifton L. Corker, Johnson City, Tennessee, for Appellant. Caryn L. Hebets,
ASSISTANT UNITED STATES ATTORNEY, Johnson City, Tennessee, for Appellee.
ON BRIEF: Clifton L. Corker, Johnson City, Tennessee, for Appellant. Guy W. Blackwell,
ASSISTANT UNITED STATES ATTORNEY, Greenville, Tennessee, for Appellee.
                                             _________________
                                                 OPINION
                                             _________________
        GRIFFIN, Circuit Judge. Defendant Aldrich Salvador Vellejo-Villareal was indicted on a
one-count indictment charging him, and eight co-defendants, with the distribution and possession
with the intent to distribute five kilograms of cocaine in violation of 21 U.S.C. §§ 846, 841(a)(1) and
841(b)(1)(A). Later, Villareal pleaded guilty to the charge pursuant to a plea agreement that states,
in pertinent part: “If, in the sole discretion of the United States, the defendant provides substantial
assistance, the United States will make a motion for downward departure pursuant to 5K1.1 of the

        *
           The Honorable Joseph H. McKinley, Jr., United States District Judge for the Western District of Kentucky,
sitting by designation.


                                                         1
No. 05-6838              United States v. Villareal                                                         Page 2


Sentencing Guidelines or 18 U.S.C. § 3553(e), or both . . .” (emphasis added).1 At the sentencing
hearing, the government did not move for a downward departure. Subsequently, Villareal was
sentenced to 120 months’ imprisonment and a five-year term of supervised release.
       Defendant timely appealed his sentence and the order of the district court denying his
motion to compel the government to file a motion for a downward departure. On appeal, Villareal
argues that the government breached its obligation pursuant to the plea agreement to move for a
downward departure in return for the substantial assistance he provided.
        For the reasons set forth below, we remand for a new hearing during which the government
shall advise the district court of its factual determination, made in its sole discretion, whether
defendant’s assistance was “substantial assistance.” In the event the government determines and
advises the court that defendant’s assistance was substantial assistance, the district court is instructed
to grant defendant’s motion to compel, vacate defendant’s sentence, and resentence defendant. In
the event the government determines and advises the court that defendant’s assistance was not
substantial assistance, the district court is instructed to deny defendant’s motion to compel.
                                                         I.
        Prior to sentencing, Villareal filed a motion to compel the United States to file a motion for
a downward departure based upon his alleged substantial assistance. He claimed that, as a result of
his assistance, another key defendant charged in the conspiracy pleaded guilty. Specifically, he
asserted that co-defendant Mariano Tapia decided to plead guilty as a direct result of Villareal’s
cooperation. In his motion to compel, Villareal argued that “[t]he failure of the United States to file
a motion for a downward departure amounts to a violation of the Due Process Clause, the Equal
Protection Clause and the Cruel and Unusual Punishment Clause of the U.S. Constitution, and is in
breach of the terms of the plea agreement.” Further, Villareal stated that the refusal to file the
downward departure “is tainted with an undeniably improper motive, an unconstitutional motive,
and is ‘not rationally related to a legitimate government end.’” He argued that he had “in all
material respects provide[d] substantial assistance to the United States in its prosecution of . . .
Mario Tapia,” but nevertheless, the United States refused to file a motion because he was
subpoenaed, and ultimately testified, at the trial of a co-defendant who was ultimately acquitted.
Villareal further requested that the district court hold an evidentiary hearing to determine the basis
for the government’s refusal to file a motion for a downward departure.
        Without holding a hearing, the district court denied Villareal’s motion to compel. In doing
so, the district court relied upon United States v. Moore, 225 F.3d 637, 641 (6th Cir. 2000), and
explained:
        [B]ecause the plea agreement in this case allocates complete discretion to the
        government to consider whether a substantial assistance motion should be filed, this
        Court may only review the government’s decision for unconstitutional motives.
        Although the defendant states in his memorandum that he has “passed the initial
        threshold test of a prima facie showing of an unconstitutional motive,” this assertion
        is conclusory, and in fact he has failed to even allege any specific unconstitutional
        motive such as race or religion.
         At the November 7, 2005, sentencing hearing, the district court first asked the government
for its position regarding a reasonable sentence, and the government recommended a sentence at the

        1
          Section 5K1.1 of the Sentencing Guidelines provides that, “[u]pon motion of the government stating that the
defendant has provided substantial assistance in the investigation or prosecution of another person who has committed
an offense, the court may depart from the guidelines.” U.S.S.G. § 5K1.1.
No. 05-6838              United States v. Villareal                                                        Page 3


lower end of the Guidelines range, 121 months. Defendant’s counsel then stated that “there is one
offer of proof I think the United States and I would agree to enter before the court, and that is that
Mr. Villareal did provide substantial assistance with regard to the [sic] Mariano Tapia,” and that
Tapia had advised the government that Tapia’s decision to plead guilty resulted from Villareal’s
cooperation. The government made no response to defense counsel’s statement.
       Following concerns expressed by defense counsel, the proceeding was continued and
reconvened on November 21, 2005. At this hearing, the government advised the district court that:
        Mr. Villareal provided information to us that assisted the government relative to
        Mariano Tapia. After considering the entire facts of Mr. Villareal’s case, the
        government, in its discretion, decided not to provide the downward departure motion;
        however, we believe that the court should consider that particular portion in
        determining the appropriate sentence.
Again, defense counsel stated that Villareal provided substantial assistance, and the sole reason that
the government refused to file the motion was because “he testified in the Jamie Vargas case.”
         At the conclusion of the reconvened sentencing hearing, Villareal was ultimately sentenced
to the statutory minimum sentence of 120 months’ imprisonment, and a five-year subsequent term
of supervised release. This timely appeal followed.
                                                        II.
        Villareal contends that the district court’s refusal to compel the government to file a motion
for a downward departure is error requiring reversal. In support of his argument, Villareal relies
upon United States v. Lukse, 286 F.3d 906 (6th Cir. 2002), for the proposition that, although his plea
agreement provides that the government has the sole discretion to determine whether defendant
furnished substantial assistance, once such a determination is made, the government has no
discretion regarding its obligation to file a motion for a downward departure.
        A district court’s ruling on whether the government’s conduct violated the plea agreement
is a question of law. On appeal, we review the issue de novo. United States v. Wells, 211 F.3d 988,
995 (6th Cir. 2000).
        Plea agreements are contractual in nature, and thus, in general, we utilize traditional
principles in their interpretation and enforcement. Lukse, 286 F.3d at 909. However, for plea
agreements that afford the government “complete discretion” to file a motion for a downward
departure, we limit our review to unconstitutional motives. See Moore, 225 F.3d at 641. Unlike
some of our sister circuits, see e.g. United States v. Knights, 968 F.2d 1483, 1487 (2d Cir. 1992) and
United States v. Jones, 58 F.3d 688, 692 (D.C.Cir. 1995), we do not review for bad faith when the
decision to file a motion vests within the sole discretion of the government. See United States v.
Hawkins, 274 F.3d 420, 428 (6th Cir. 2001) (“[B]ecause the defendant’s plea agreement afforded
the government ‘complete discretion’ to determine whether to file a motion for downward departure,
the panel ‘may review the      government’s refusal only for unconstitutional motives.’”)(quoting
Moore, 225 F.3d at 641).2
        In the present case, the district court ruled that because the plea agreement afforded the
government complete discretion whether to file a motion for a downward departure, the only ground
for reviewing the government’s actions was an unconstitutional motive, which Villareal did not

        2
         Hawkins also elaborated on the strictly construed nature of our plea agreement review and advocated that we
reexamine this issue en banc. Hawkins, 274 F.3d at 427-34.
No. 05-6838           United States v. Villareal                                                  Page 4


allege. We disagree. The determinative issue is not whether the government possessed complete
discretion to determine if Villareal provided substantial assistance, but whether the government
made a determination regarding the substantiality of Villareal’s assistance. We hold that, on this
record, it did not.
         In United States v. Lukse, the two defendants and the government entered into a plea
agreement that was substantially similar to the agreement in the present case. In Lukse, like the
present case, the government represented to the district court that the defendants provided “some
assistance” by giving the government previously unknown information that led to the investigation,
arrest, and indictment of several other individuals. Lukse, 286 F.3d at 909. Prior to sentencing,
however, the defendants were caught smoking marijuana in jail, and, consequently, the government
decided not to file downward departure motions because the defendants had lost their credibility as
trial witnesses. Id. The Lukse defendants filed a motion to compel the government to file substantial
assistance motions, but the district court refused, concluding that there was no evidence that the
government acted upon unconstitutional motives. Id.
       On appeal, we reversed and remanded, stating:
       Moore and Benjamin’s instruction that there is no review for bad faith only means
       that if the Appellants had provided undeniably effective assistance, the government
       could ignore this help and surreptitiously claim that substantial assistance had not
       been rendered. Once substantial assistance was acknowledged, however, the
       government was required to file the motion.
Lukse, 286 F.3d at 912 (emphasis added).
        In the present case, the government contends that Lukse is inapposite because the plea
agreement in Lukse provided that the United States would advise the district court whether the
defendant furnished substantial assistance “in the investigation or prosecution of another person who
has committed an offense.” Id. at 912. Here, there is no distinction between the “investigation”
versus the “prosecution” of another person; the plea agreement states simply, “[i]f, in the sole
discretion of the United States, the defendant provides substantial assistance, the United States will
make a motion for downward departure.” The salient point is that in both Lukse and the instant case,
the government acknowledged that the defendant provided “some assistance,” but did not make
known its determination, if any, whether that assistance was substantial.
       On this issue, Lukse held:
       [A]lthough the government had complete discretion to determine if the Appellants
       had rendered substantial assistance, the agreement still imposed certain restraints on
       them. First, they had to analyze and determine whether substantial assistance had
       been rendered; they could not simply leave the question unanswered. Second, if the
       government decided not to file the motion, they had to establish the Appellants’
       breach of the plea agreement, as Benjamin holds that it is their burden. Third, if they
       determined that substantial assistance had been rendered in either the prosecution or
       investigation of other suspects, they were required to file the motions. The plea
       agreement stated that, “[i]f, in the sole discretion of the United States, the Defendant
       provides substantial assistance in the investigation or prosecution of another person
       who has committed an offense, the United States will make a motion for downward
       departure[.]” (emphasis added). Any other conclusion would make such plea
       agreements completely illusory and violate the Supreme Court’s dictates on the issue
       of plea agreements. See e.g. Mabry v. Johnson, 467 U.S. 504, 104 S. Ct. 2543, 81 L.
       Ed. 2d 437 (1983); Santobello v. New York, 404 U.S. 257, 92 S. Ct. 495, 30 L. Ed.
       2d 427 (1971).
No. 05-6838           United States v. Villareal                                                 Page 5


Lukse, 286 F.3d at 912-13 (emphasis added).
        Like Lukse, Villareal’s plea agreement provides that if “defendant provides substantial
assistance, the United States will make a motion for downward departure pursuant to 5K1.1 of the
Sentencing Guidelines or 18 U.S.C. § 3553(e).” (Emphasis added.) Pursuant to the instruction of
Lukse, this obliges the government to “analyze and determine whether substantial assistance had
been rendered; they could not simply leave the question unanswered.” Lukse, 286 F.3d at 912.
       Here, the government did not state that substantial assistance was not rendered by defendant.
Rather, it left the court to assume or infer this by its refusal to file a motion for downward departure.
This ambiguity is unnecessary, confusing, and contrary to the plea agreement. Thus, we hold that
the government is required to advise the court and defendant of its factual determination of whether
defendant provided substantial assistance.
        Our holding is consistent with our recent, albeit unpublished, decisions, including United
States v. Hemphill, No. 06-1154, 2007 WL 1091951, *3 (6th Cir. April 10, 2007) (unpublished), in
which we reiterated that “[e]ven when the government retains discretion in deciding whether a
defendant provided substantial assistance, the government must exercise that discretion and cannot
simply decline to file a § 5K1.1 motion.” (Emphasis added.) Also see United States v. Newman,
85 F. App’x 488 (6th Cir. 2004) (unpublished). Although Hemphill and Newman are unpublished
decisions and thus not precedentially binding under the doctrine of stare decisis, Williamson v. Aetna
Life Ins. Co., 481 F.3d 369, 376 n.4 (6th Cir. 2007); United States v. Sanford, 476 F.3d 391, 396 (6th
Cir. 2007), we nonetheless find them persuasive.
        The government states in its appellate brief that “[t]here was no question that the United
States exercised its discretion and made a decision that defendant had not provided substantial
assistance and that it communicated that decision to the district court.” However, the record does
not support such a declaration. At the sentencing hearing, the Assistant U.S. Attorney said simply:
        Mr. Villareal provided information to us that assisted the government relative to
        Mariano Tapia. After considering the entire facts of Mr. Villareal’s case, the
        government, in its discretion, decided not to provide the downward departure motion;
        however, we believe that the court should consider that particular portion in
        determining the appropriate sentence.
This statement can be read one of two ways: either (1) Villareal assisted the government, but
nevertheless, it was not substantial; or (2) Villareal provided assistance (substantial or not), but
regardless, the government still chose not to file a motion for downward departure.
        We decline to engage in a broad reading of the government’s ambiguous statement. On this
record, it is unclear whether the government exercised its discretion in deciding whether defendant
provided substantial assistance. Accordingly, we remand for the government to “analyze and
determine whether substantial assistance had been rendered[,]” as “they could not simply leave the
question unanswered.” Lukse, 286 F.3d at 912.
                                                   III.
        Alternatively, the United States requests that we affirm Villareal’s sentence on the ground
that he “breached the plea agreement by testifying falsely at Vargas’ trial and the United States was
relieved of any obligation under the plea agreement.” However, the government cites nothing in the
record to support this statement. Accordingly, we conclude that the government has abandoned this
issue. United States v. Johnson, 430 F.3d 383, 397 (6th Cir. 2005) (observing that “it is a settled
appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at
No. 05-6838          United States v. Villareal                                             Page 6


developed argumentation, are deemed waived.”) (quoting United States v. Elder, 90 F.3d 1110, 1118
(6th Cir. 1996)).
                                                  IV.
       For these reasons, we remand for further proceedings consistent with this opinion.
