                                                                                 FILED
                                                                     United States Court of Appeals
                                      PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                        August 4, 2017

                                                                         Elisabeth A. Shumaker
                             FOR THE TENTH CIRCUIT                           Clerk of Court
                         _________________________________

UNITED STATES OF AMERICA,

      Plaintiff - Appellee,

v.                                                          No. 17-604

JOHN DOE,

      Defendant - Appellant.
                      _________________________________

Before KELLY, LUCERO, and MORITZ, Circuit Judges.1
                  _________________________________

MORITZ, Circuit Judge.
                    _________________________________

      Plea agreements are “an essential component of the administration of justice.”

Santobello v. New York, 404 U.S. 257, 260 (1971). But there’s nothing “just[],” id.,

about requiring defendants to fulfill their obligations under such agreements unless

the government must do the same. Here, the plea agreement obligated the

government to exercise its discretion in determining whether to file a substantial-

assistance motion. Yet according to the defendant, the government failed to exercise

that discretion in good faith and thereby breached the plea agreement. Because we


      1
        The Honorable Neil M. Gorsuch was an original member of the panel that
heard oral argument. He did not participate in the resolution of this case or the
preparation of this opinion due to his ascent to the United States Supreme Court. The
Honorable Nancy Moritz replaced him on the panel.
conclude that the district court erred in ruling that our unpublished decision in United

States v. Kovac, 23 F. App’x 931 (10th Cir. 2001), precluded it from reaching this

argument, we reverse and remand for further proceedings.

                                            I

       Facing two counts of possession with intent to distribute, see 21 U.S.C.

§ 841(a)(1), defendant John Doe pleaded guilty as charged pursuant to a Fed. R.

Crim. P. 11(c)(1)(B) plea agreement. As part of that agreement, Doe waived his right

to appeal or collaterally attack his plea, his conviction, or any sentence within the

Guidelines range. And in return, the government agreed—in its sole discretion and by

any means it deemed appropriate—to evaluate Doe’s cooperation in determining

whether to file a substantial-assistance motion. See 18 U.S.C. § 3553(e); U.S.S.G.

§ 5K1.1. The plea agreement also clarified that the ultimate decision to file such a

motion was, like the government’s evaluation of Doe’s cooperation, solely within the

government’s discretion.

       The district court accepted Doe’s guilty plea. But it didn’t sentence him right

away. Instead, Doe remained in protective custody while he and a close family

member helped law enforcement bring down a local drug operation. That cooperation

placed both of their lives at risk.

       Citing the assistance of both Doe and his family member, the prosecuting

attorney twice asked the downward departure committee of the United States

Attorney’s Office to approve the filing of a substantial-assistance motion. Without

explanation, and despite the opinion of both the prosecuting attorney and local law

                                            2
enforcement that Doe and his family member had indeed provided substantial

assistance, the committee denied those requests.

      In response, Doe filed a motion to enforce the plea agreement. Citing general

contract-law principles, Doe argued that the government acted arbitrarily and in bad

faith by refusing to file a substantial-assistance motion, especially in the absence of

any explanation for the committee’s decision.

      The district court denied Doe’s motion. In doing so, it reasoned that the plea

agreement’s plain language left the decision to file a substantial-assistance motion

within the government’s sole discretion. And it concluded that under our unpublished

decision in Kovac, 23 F. App’x 931, it couldn’t review that discretionary decision—

even for the limited purpose of determining whether the government acted in good

faith. Based on a Guidelines range of 121 to 151 months in prison and the applicable

120-month and 60-month statutory minimums, the district court then imposed

concurrent 121-month sentences. Doe appeals.

                                           II

      On appeal, Doe advances two challenges to the government’s refusal to file a

substantial-assistance motion.2 First, he mounts a constitutional attack: he alleges that

the government’s decision wasn’t “rationally related to any legitimate [g]overnment

end.” Wade v. United States, 504 U.S. 181, 186 (1992). Second, he asserts a

      2
        The term “substantial-assistance motion” can refer to a motion filed pursuant
to § 3553(e) or a motion filed pursuant to U.S.S.G. § 5K1.1. Because both of Doe’s
convictions carry mandatory statutory minimum sentences, only the former type of
motion is at issue here. See § 3553(e) (allowing district court to impose sentence
below statutory minimum if government files substantial-assistance motion).
                                            3
contractual challenge: he argues that the government breached the plea agreement’s

implied duty of good faith and fair dealing by refusing to file a substantial-assistance

motion. See United States v. Hahn, 359 F.3d 1315, 1324–25 (10th Cir. 2004) (en

banc) (“[C]ontract principles govern plea agreements.”); United States v. Rexach, 896

F.2d 710, 714 (2d Cir. 1990) (“There is . . . an implied obligation of good faith and

fair dealing in every contract.”); Ace Constr. Co. v. W. H. Nichols & Co., 353 F.2d

110, 112 (10th Cir. 1965) (“Following general contract law, we have said that each

party owe[s] the contract the duty of good faith performance . . . .”); Restatement

(Second) of Contracts § 205 (Am. Law Inst. 1981) (“Every contract imposes upon

each party a duty of good faith and fair dealing in its performance and its

enforcement.”). We begin by addressing Doe’s contractual argument. And because

our resolution of that issue ultimately requires us to reverse and remand for further

proceedings, we decline to reach Doe’s constitutional challenge.

      In asking the district court to enforce the plea agreement, Doe argued that the

government acted in bad faith by refusing to file a substantial-assistance motion. But

the district court refused to address Doe’s good-faith argument, reasoning that our

unpublished decision in Kovac forecloses such review. See 23 F. App’x at 938

(“[W]here a plea agreement expressly grants the government sole discretion over the

filing of a substantial assistance motion, a prosecutor’s discretionary refusal to file

such a motion may not be reviewed for bad faith.”).

      We can hardly blame the district court for reaching this conclusion. After all,

the circuits are split on this question. Compare, e.g., United States v. Isaac, 141 F.3d

                                            4
477, 483 (3d Cir. 1998) (“[A] district court is empowered to examine for ‘good faith’

a prosecutor’s refusal to file a § 5K1.1 motion pursuant to a plea agreement that gives

the prosecutor ‘sole discretion’ to determine whether the defendant’s assistance was

substantial.”), with, e.g., United States v. Aderholt, 87 F.3d 740, 742 (5th Cir. 1996)

(“If the [g]overnment retains sole discretion to file the [substantial-assistance]

motion, its refusal to file is reviewable only for unconstitutional motives such as the

race or religion of the accused.”).

      And it appears this court is likewise divided. Compare, e.g., Kovac, 23 F.

App’x at 938 (refusing to review prosecutor’s discretionary decision for bad faith),

with United States v. Overstreet, 51 F. App’x 838, 842 (10th Cir. 2002)

(unpublished) (“In situations in which a defendant ‘asserts that the government

breached an agreement that leaves discretion to the prosecutor, the district court’s

role is limited to deciding whether the government made the determination in good

faith.’” (quoting United States v. Cerrato-Reyes, 176 F.3d 1253, 1264 (10th Cir.

1999), abrogated on other grounds by United States v. Duncan, 242 F.3d 940 (10th

Cir. 2001))).

      This intra-circuit split may seem puzzling. We long ago held that even when a

plea agreement gives the government discretion to decide whether to file a

substantial-assistance motion, a court can nevertheless review “whether the

[government] has made its determination in good faith.” United States v. Vargas, 925

F.2d 1260, 1266 (10th Cir. 1991). And in the absence of en banc consideration, one

panel of this court generally can’t “overturn the decision of another panel.” United

                                            5
States v. Brooks, 751 F.3d 1204, 1209 (10th Cir. 2014) (quoting United States v.

Meyers, 200 F.3d 715, 720 (10th Cir. 2000)). Thus, it would appear that in the

absence of en banc consideration, we remain bound by Vargas.

        But the rule that prevents one panel of this court from overruling an earlier

panel’s decision doesn’t apply “when the Supreme Court issues an intervening

decision that is ‘contrary’ to or ‘invalidates our previous analysis.’” Id. (first quoting

Meyers 200 F.3d at 720; then quoting United States v. Shipp, 589 F.3d 1084, 1090

n.3 (10th Cir. 2009)). And according to the government, the Supreme Court’s

intervening decision in Wade, 504 U.S. 181, not only allows us to abandon the rule

we announced in Vargas, but requires us to do so.

        The government’s argument is not without support. More than a decade ago,

this court reached the same conclusion—albeit in an unpublished, and thus

nonprecedential, decision. See Kovac, 23 F. App’x at 938 & n.10 (stating that Wade

“altered the landscape in this area of the law”); 10th Cir. R. 32.1(A) (“Unpublished

decisions are not precedential . . . .”). We don’t disagree that Wade altered the legal

landscape. But for the reasons discussed below, we conclude that it left undisturbed

the bedrock principles we relied on in deciding Vargas. And because Vargas

therefore remains good law, we are required to apply it here. See Brooks, 751 F.3d at

1209.

        Our reasons are straightforward: the contractual considerations before us in

Vargas, see 925 F.2d at 1266, simply weren’t before the Court in Wade. Instead, the

Wade Court carefully articulated the narrow question before it as “whether district

                                            6
courts may subject the [g]overnment’s refusal to file . . . a [substantial-assistance]

motion to review for constitutional violations.” 504 U.S. at 183. And before

answering that constitutional question, the Court took pains to note that there was no

“agreement on the [g]overnment’s behalf to file a substantial-assistance motion.” Id.

at 185. Finally, in case any ambiguity remained about the nature of its inquiry, the

Court contrasted the constitutional question before it with the contractual question

that was before the Fourth Circuit in United States v. Conner, 930 F.2d 1073 (4th Cir.

1991). See Wade, 504 U.S. at 185 (citing Conner, 930 F.2d at 1075-77).

      Only after clarifying what the case before it was not about—i.e., plea

agreements—did the Wade Court then hold that “federal district courts have authority

to review a prosecutor’s refusal to file a substantial-assistance motion and to grant a

remedy if . . . the refusal was based on an unconstitutional motive” or “not rationally

related to any legitimate [g]overnment end.” Id. at 185-86.

      The government would have us read the word “only” into this pronouncement.

In other words, the government interprets Wade as establishing that when the

government retains discretion to file a substantial-assistance motion, a district court

can review the government’s discretionary refusal to file that motion only for

constitutional compliance. But given the Wade Court’s careful efforts to cabin the

narrow constitutional question before it, we do not believe that the Court intended for

Wade’s constitutional test to supplant, rather than supplement, the contractual

principles that we traditionally apply to plea agreements. See Vargas, 925 F.2d at



                                            7
1266-67. Instead, “[a] close reading of Wade indicates that its teachings are confined

to situations in which there is no plea agreement.” Isaac, 141 F.3d at 482.

       The government insists that this conclusion fails to account for the Wade

Court’s hesitancy to intrude upon matters of prosecutorial discretion. Specifically,

the government argues that a prosecutor’s decision regarding whether to file a

substantial-assistance motion is, much like a prosecutor’s decision regarding whether

to prosecute at all, “particularly ill-suited to judicial review.” Wayte v. United States,

470 U.S. 598, 607 (1985).

       But good-faith review is hardly a “concept novel to the courts.” Isaac, 141

F.3d at 483. On the contrary, “[e]very contract imposes upon each party a duty of

good faith and fair dealing in its performance.” Id. (alteration in original) (quoting

Restatement (Second) of Contracts § 205 (Am. Law Inst. 1981)). Thus, courts are

quite practiced at “determining whether an allegation of bad faith has been

established.” Id.

       Nor do we see any reason to think that a district court’s good-faith review

might meaningfully interfere with the government’s prosecutorial discretion. The

sole question before a district court undertaking such review is whether the

government’s refusal to file a substantial-assistance motion is “based on an honest

evaluation of the assistance provided and not on considerations extraneous to that

assistance.” Id. at 484. And if the government wishes to avoid even this minimal

level of scrutiny, it can easily do so: it can decline to include discretionary

substantial-assistance clauses in its plea agreements. Thus, even assuming that good-

                                            8
faith review might somehow interfere with prosecutorial discretion, the government

nevertheless maintains absolute and unfettered discretion to decline to subject itself

to such review.

      But if, on the other hand, the government opts to include discretionary

substantial-assistance clauses in its plea agreements, then defendants who “bargain[]

away important rights” in reliance on those clauses are entitled to a “reasonable

expectation of receiving something in return for the surrender of [their] rights”—i.e.,

“a discretionary evaluation of [their] cooperation in good faith.” Id. at 483.

Accordingly, we reaffirm that even when a plea agreement gives the government

complete discretion to decide whether to file a substantial-assistance motion, a court

may nevertheless review “whether the prosecutor has made its determination [not to

file such a motion] in good faith.” Vargas, 925 F.2d at 1266. Nothing in Wade

establishes otherwise.

      Of course, that’s not to say that we find Wade’s guidance wholly inapposite

here. As the government notes, Wade incorporated a substantial-threshold

requirement into its constitutional analysis. See 504 U.S. at 186-87 (explaining that

“generalized allegations of improper motive” won’t entitle defendants to relief “or

even to discovery or an evidentiary hearing”; instead, defendant must first develop

claim that “rise[s] to the level warranting judicial enquiry”). And as the government

points out, allowing defendants to evade Wade’s substantial-threshold requirement by

couching their arguments in contractual, rather than constitutional, terms would

largely render that substantial-threshold requirement meaningless.

                                            9
      Thus, we incorporate a similar threshold requirement here. In order to trigger

good-faith review of a prosecutor’s discretionary refusal to file a substantial-

assistance motion, a defendant must first allege that the government acted in bad

faith. The government may then rebut that allegation by providing its reasons for

refusing to file the motion. Assuming those reasons are at least facially plausible, we

hold that a defendant is only entitled to good-faith review if he or she “produce[s]

evidence giving reason to question the justification [the government] advanced.”

Isaac, 141 F.3d at 484. We think this approach strikes an appropriate balance

between (1) the respect and deference we owe to the government’s exercise of its

prosecutorial discretion, see United States v. Forney, 9 F.3d 1492, 1501 n.4 (11th

Cir. 1993), and (2) our longstanding tradition of subjecting plea agreements to

general contract-law principles, see United States v. Gamble, 917 F.2d 1280, 1282

(10th Cir. 1990).

      Here, Doe has already satisfied the first step of this three-step process: he

alleged below that the government acted in bad faith in refusing to file a substantial-

assistance motion. But the government hasn’t yet fulfilled the second step: because

the district court ruled that the government’s decision wasn’t subject to good-faith

review, the government never disclosed below its reasons for refusing to file a

substantial-assistance motion. Accordingly, we remand to the district court with

directions to (1) evaluate the facial plausibility of any justifications the government




                                           10
might provide;3 and (2) assess whether Doe can present evidence that would call

those justifications into question. If so, then the district court should determine

whether the government’s refusal to file a substantial-assistance motion in this case

breached the plea agreement’s implied duty of good faith.4

      As a final matter, we decline to address the government’s suggestion that we

could resolve this appeal by enforcing the plea agreement’s appellate-waiver clause.

As the government concedes, “an appellate waiver is not enforceable if the

[g]overnment breaches its obligations under the plea agreement.” United States v.

Rodriguez-Rivera, 518 F.3d 1208, 1212 (10th Cir. 2008). Thus, unless and until the

district court resolves whether the government breached the plea agreement by acting


      3
         The government originally represented to this court that it based its decision
not to file a substantial-assistance motion on (1) Doe’s extensive criminal history; (2)
the redundancy of the information Doe provided to law enforcement; and (3) the
third-party nature of the assistance that Doe’s family member provided. But the
government has since abandoned any reliance on Doe’s criminal history. And the
government’s suggestion on appeal that third-party assistance is somehow
insufficient to warrant a substantial-assistance motion is completely at odds with the
position the government advanced below. Thus, while we take no position on
whether the government’s evolving justifications might belie their legitimacy, we
note that the district court remains free to take this factor into account on remand,
both in determining whether Doe is entitled to good-faith review and, if it reaches the
question, in determining whether the government acted in good faith.
      4
        Because we reverse and remand for further proceedings, we see no reason to
reach Doe’s constitutional argument—i.e., his assertion that the government’s
decision not to file a substantial-assistance motion wasn’t “rationally related to any
legitimate [g]overnment end.” Wade, 504 U.S. at 186. Thus, we decline to decide
(1) whether Doe preserved that argument below; (2) whether, if he didn’t, plain-error
review would be appropriate, see United States v. Easter, 981 F.2d 1549, 1556 (10th
Cir. 1992); or (3) whether, if plain-error review is appropriate, Doe can make the
requisite showing, see United States v. Simpson, 845 F.3d 1039, 1057 (10th Cir.
2017).
                                           11
in bad faith, we cannot evaluate whether enforcement of the plea agreement’s

appellate-waiver clause is appropriate.

                                    *      *      *

      Doe and a close family member risked their lives to assist the government.

And as part of Doe’s plea agreement, the government promised to consider that

assistance in determining whether to file a substantial-assistance motion on Doe’s

behalf. But that promise is largely meaningless if the government need not make its

decision in good faith. Likewise, an implied promise of good faith is largely

meaningless if it’s not subject to judicial review and enforcement. Of course, some

allegations of bad faith will be so obviously groundless that they won’t entitle a

defendant to judicial review. But on this record, we can’t say that’s the case here.

Accordingly, we reverse and remand to the district court for further proceedings.




                                           12
