                                                                                F I L E D
                                                                         United States Court of Appeals
                                                                                 Tenth Circuit
                          UNITED STATES COURT OF APPEALS
                                                                                    JAN 7 1998
                                    TENTH CIRCUIT
                                                                            PATRICK FISHER
                                                                                      Clerk

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
                                                            No. 97-8066
 v.                                                      (D.C. No. 97-CR-18)
                                                               (D. Wyo.)
 ALFREDO DEOLLOS,

           Defendant-Appellant.



                                 ORDER AND JUDGMENT*


Before BALDOCK, EBEL, and MURPHY, Circuit Judges.**


       This appeal requires us to decide whether the government breached its plea

agreement with Defendant by refusing to file a motion in the district court for a

downward departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). Exercising




       *
                This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
       **
             After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. 34.1.9. The case is therefore ordered
submitted without oral argument.
jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that the government did not

breach the plea agreement and affirm.

      On January 18, 1997, a grand jury returned an indictment charging Defendant with

one count of conspiracy to distribute methamphetamine and one count of possession with

intent to distribute methamphetamine, in respective violation of 21 U.S.C. § 846 and 21

U.S.C. § 841(a)(1). Instead of proceeding to trial, Defendant and the government entered

into a plea agreement whereby Defendant agreed to plead guilty to conspiracy to

distribute methamphetamine and the government agreed to dismiss the remaining count.

The plea agreement also contains additional terms defining the government’s obligations

to Defendant and the government’s position regarding application of the sentencing

guidelines to Defendant. Specifically, the agreement states that the government believed

Defendant distributed between ten and thirty kilograms of methamphetamine, that

Defendant was entitled to a three-level downward departure for accepting responsibility,

and that the applicable sentencing guideline range would be between 151 and 188

months. The agreement further provides that Defendant was free to argue for an

additional downward departure at sentencing. The parties included no language

suggesting that the government would file a motion for downward departure pursuant to

U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e).

      At the change of plea hearing, before Defendant became bound by the plea

agreement, the government clearly stated that it would not file a motion for downward


                                            2
departure pursuant to U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e). Rec. Vol. IV at 8-9.

However, the prosecutor stated that the government would “certainly be open to

discussions along those lines” at a later time. Id. Subsequently, a DEA agent interviewed

Defendant regarding his willingness to participate in the government’s investigation

against Will Smith. Defendant provided certain information to the agent which was later

combined with other evidence to indict Smith. Defendant then filed a motion to compel

the government to move for a substantial assistance downward departure pursuant to

U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). The district court concluded that the

government was not bound under the agreement to move for the downward departure and

denied the motion.

       The government has wide discretion in determining whether to move for a

substantial assistance downward departure under U.S.S.G. § 5K1.1 and 18 U.S.C.

§ 3553(e). Indeed, our review of the government’s decision not to move for a downward

departure pursuant to § 5K1.1 is typically limited to determining whether the decision was

based on an unconstitutional motive or was not rationally related to a legitimate

government interest. See Wade v. United States, 504 U.S. 181, 185-86 (1992). Thus,

even if a Defendant renders substantial assistance to the government, the government

retains discretion to decide whether to move for a substantial assistance downward

departure. United States v. Courtois, 1997 WL 763464 at *2 (10th Cir. 1997). The

government may bargain away this discretion, however, in a plea agreement. Id.


                                             3
        We review whether the government breached the plea agreement de novo. United

States v. Rockwell Intern. Corp., 124 F.3d 1194, 1199 (10th Cir. 1997). Guided by

contract principles, we examine the nature of the prosecutor’s promise based upon what

Defendant reasonably understood when he entered into the plea agreement. Id. Whether

the government is bound under a plea agreement to move for a substantial assistance

downward departure turns on the specific language of the agreement. Courtois, 1997 WL

763464 at *2. In order to find that the government bargained away its discretion to file a

motion under U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e), we have generally required an

express promise by the government. Id. Thus, where the language of the plea agreement

is equivocal and merely leaves open the possibility that the government may move for a

substantial assistance downward departure in the future, the government does not breach

the agreement by refusing to file the motion. Id.

       Defendant contends that the government breached the plea agreement by refusing

to file a motion asking the district court to depart downward pursuant to U.S.S.G. § 5K1.1

and 18 U.S.C. 3553(e). Specifically, Defendant argues that the government became

bound under the plea agreement to file the motion when a DEA agent gained information

from him which was later used to procure an indictment against Will Smith. We disagree.

       The plea agreement before us contains no language indicating an express or

implied duty on the government’s part to file a motion for downward departure under

either U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e). On the contrary, the agreement clearly


                                             4
suggests that, aside from the government’s acquiescence to a three-level departure

pursuant to U.S.S.G. § 3E1.1, any arguments in favor of further downward departures

rested with Defendant. Additionally, no statements made at the change of plea hearing or

in the prosecutor’s statement expressly bargained away the prosecutor’s discretion to

move for a substantial assistance downward departure. The prosecutor’s statement

clearly states that “at this point, [the government] does not intend to file a motion for

downward departure pursuant to § 5K1.1 U.S.S.G. or 18 U.S.C. § 3553(e).” Rec. Vol. I,

Tab 17 at 10. Moreover, the prosecutor’s statement at the change of plea hearing that

“[a]t some point in time we’re certainly open to further discussions along those lines, but

at this point . . . we’re not prepared to file 5K1 [sic]. . .,” Rec. Vol. IV at 8-9, suggests an

intention to retain, not bargain away, its discretion.

       Construing the plea agreement according to Defendant’s reasonable understanding

at the time he entered into it, we conclude that government did not breach the agreement

by refusing to file a motion for downward departure pursuant to U.S.S.G. § 5K1.1 and 18

U.S.C. § 3553(e). Accordingly, the judgment of the district court is

       AFFIRMED.

                                                    Entered for the Court,



                                                    Bobby R. Baldock
                                                    Circuit Judge



                                                5
