                                                      [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                                                       FILED
                     ________________________ U.S. COURT OF APPEALS
                                                      ELEVENTH CIRCUIT
                            No. 11-11133              NOVEMBER 22, 2011
                        Non-Argument Calendar             JOHN LEY
                      ________________________             CLERK

               D.C. Docket No. 6:09-cr-00210-PCF-GJK-5



UNITED STATES OF AMERICA,

                                                         Plaintiff - Appellee,

                                 versus

CLARA ELLEN HANSEN,

                                                      Defendant - Appellant.

                     ________________________

               Appeal from the United States District Court
                   for the Middle District of Florida
                     ________________________

                          (November 22, 2011)

Before EDMONDSON, MARTIN and KRAVITCH, Circuit Judges.

PER CURIAM:
      Clara Ellen Hansen appeals her sentence of thirty months in prison followed

by three years supervised release.

      On April 2, 2010, Hansen entered into an agreement with the government

by which she pleaded guilty to conspiracy to manufacture and to possess with the

intent to manufacture marijuana plants in violation of 21 U.S.C. § 846. Under the

agreement, the government committed to recommend a sentence at the low end of

the applicable guideline range; a downward adjustment for acceptance of

responsibility pursuant to U.S.S.G. § 3E1.1(a); and a sentence without regard to

the statutory minimum pursuant to the safety valve provision of 18 U.S.C. §

3553(f) and U.S.S.G. § 5C1.2. The government also agreed to “consider whether

[any cooperation by Hansen] qualifie[d] as ‘substantial assistance’ in accordance

with the policy of the United States Attorney for the Middle District of Florida”

warranting a recommendation of additional downward departure under U.S.S.G. §

5K1.1. The agreement further provided that Hansen would not challenge the

determination of substantial assistance by appeal or otherwise, and that she would

not appeal her sentence except under four narrow circumstances: if the sentence

exceeded the applicable guidelines range as determined by the sentencing court; if

the sentence was in excess of the statutory maximum; if the sentence violated the

Eight Amendment; or if the government appealed.

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      At the time of sentencing, the government recommended downward

departures under the safety valve provision and for acceptance of responsibility.

The government also recommended a low-end sentence, but did not recommend a

downward departure based upon substantial assistance under § 5K1.1. The

prosecutor explained that “[b]ecause of [Hansen’s] role, she really wasn’t in a

position to assist us in the investigation or in the prosecution of others.” Hansen

did not ask the district court to set aside the plea agreement, nor did she request a

finding of prosecutorial bad faith for failure to file the § 5K1.1 motion. Hansen’s

attorney filed a memorandum unrelated to the plea agreement requesting

additional downward departures based upon the mitigating factors of Hansen’s

serious medical condition and age pursuant to 18 U.S.C. § 3553(a). The judge

allowed Hansen to testify as to her serious medical condition, but refused to depart

downward from the existing sentence based upon her condition or age.

      Hansen appeals her sentence on two grounds. First, she argues that the plea

agreement should be set aside for bad faith and unconstitutional conduct. Second,

Hansen argues that the district court abused its discretion in refusing to depart

downward based upon Hansen’s serious medical condition. We address each

argument in turn.




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      This Court enforces the terms of an appeal waiver if the defendant

knowingly and voluntarily entered into the agreement. See United States v.

Bascomb, 451 F.3d 1292, 1294–95 (11th Cir. 2006). We have found a waiver to

be knowing and voluntary if “(1) the district court specifically question[s] the

defendant about the waiver during the plea colloquy, or (2) the record clearly

shows that the defendant otherwise understood the full significance [of the

waiver].” United States v. Grinhard-Henry, 399 F.3d 1294, 1296 (11th Cir. 2005)

(quotation marks omitted). At the plea hearing, the magistrate judge explained to

Hansen the terms of her plea agreement in detail and Hansen indicated that she

understood them. In particular, the judge explained that Hansen was giving up her

right to appeal except in the limited circumstances listed above.

      In an effort to circumvent the appeal waiver, Hansen argues that this Court

should set it aside, because the government breached the agreement by negotiating

it in bad faith. It is true that this Court has noted that the government must fulfill

any promise that induces a defendant to consent to a plea agreement. United

States v. Copeland, 381 F.3d 1104, 1105 (11th Cir. 2004) (citing Santobello v.

New York, 404 U.S. 257, 262, 92 S. Ct. 495, 499 (1971)). And prosecutorial bad

faith may be a basis for setting aside a plea agreement, but a defendant must raise

the issue of prosecutorial bad faith at the sentencing hearing in order to preserve

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the issue for appeal. See United States v. Forney, 9 F.3d 1492, 1500 (11th Cir.

1993); United States v. Jones, 933 F.2d 1541, 1547 (11th Cir. 1991). As Hansen

acknowledges, Hansen did not attempt to raise the issue of bad faith or

constitutionally impermissible motive at the sentencing hearing.

        Therefore, this Court reviews the district court’s proceedings for plain

error.1 United States v. Romano, 314 F.3d 1279, 1281 (11th Cir. 2002). Hansen

contends that it was “plain to see that the United States never had any further

intention of engaging or utilizing either Miss Hansen or the information she had

previously provided [because the government] already knew [at the time of the

plea agreement] that Miss Hansen was at the bottom rung of the ladder in [the]

conspiracy.” Furthermore, Defendant asserts that “the United States clearly knew”

at the time of the plea agreement (and presumably, therefore, the district court

should also have known) that Hansen would not receive a § 5K1.1 motion for

substantial assistance. This allegation, standing alone, does not amount to a

“substantial threshold showing” that the government’s refusal to file a substantial

assistance motion was motivated by bad faith. See United States v. McNeese, 547

        1
           Under the plain error standard, we will not correct an error that the defendant failed to
raise in the district court unless there is “(1) error, (2) the error is plain, (3) that affects substantial
rights, and (4) seriously affects the fairness, integrity, or public reputation of judicial
proceedings.” See United States v. Langford, 647 F.3d 1309, 1326 n.11 (11th Cir. 2011); see
also United States v. Olano, 507 U.S. 725, 732, 113 S. Ct. 1770, 1776 (1993).


                                                     5
F.3d 1307, 1308 (11th Cir. 2008) (stating that given government’s discretion in

such matters, courts may review “the government's refusal to file a substantial-

assistance motion only if the defendant first makes a ‘substantial threshold

showing’ that the refusal was based upon an unconstitutional motive”).

      The plea agreement required only that the government “consider” whether

Hansen’s cooperation amounted to substantial assistance. At the plea hearing,

Hansen specifically acknowledged that she was not relying on “any promises or

representations whatsoever . . . except those that [were] expressly set forth in the

written plea agreement.” In keeping with the plain language of the agreement,

defense counsel did not object to the government’s refusal to file a motion for

substantial assistance at the time of sentencing. Thus, the record reveals no basis

for doubting the government’s motives and we find no error.

      Hansen’s contention that the United States violated her constitutional right

to due process of law under the Fifth Amendment by making “false promises” fails

for the same reasons. Defendant did not argue at the sentencing hearing that the

United States had deprived her of due process. Indeed, Hansen’s low-level role

and the sequence of arrests belie her argument that the government’s decision to

withhold a § 5K1.1 downward motion for substantial assistance was arbitrary or

motivated by racial or religious bias. See Wade v. United States, 504 U.S. 181,

                                          6
186 112 S. Ct. 1840, 1844 (1992) (noting possible constitutional limitations on

prosecutorial discretion). Therefore, the district court committed no error by

denying relief on this ground.

      Hansen’s second assertion—that the district court abused its discretion in

refusing to depart downward based upon Hansen’s physical condition—meets

none of the four exceptions noted in the plea agreement and is therefore barred by

her appeal waiver. In any event, this Court does not review “each individual

decision made [by a district court] during the sentencing process” to depart

pursuant to the sentencing guidelines. United States v. Winingear, 422 F.3d 1241,

1245 (11th Cir. 2005). Instead, we review a district court’s sentencing decision

only to ensure that the court considered proper sentencing factors and reasonably

weighed those factors under 18 U.S.C. § 3553(a). See United States v. Irey, 612

F.3d 1160, 1189 (11th Cir. 2010). After granting Hansen an opportunity to testify

as to her serious medical condition, the district court found that no downward

departure was warranted. For these reasons, the judgment of the sentencing court

is AFFIRMED.




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