                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         AUG 26 1998
                                   TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                               Clerk


UNITED STATES OF AMERICA,

          Plaintiff-Appellee,

v.                                                     No. 97-3138
                                                    (District of Kansas)
JAMES WALTON, aka Petie, aka Tim                (D.C. No. 95-CR-20086-01)
Olds, aka Jamal Thomas, aka Jamarl
Thomas,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.




      Defendant James Walton appeals the district court’s denial of his motion

either to compel the Government to file a motion for downward departure from

the Sentencing Guidelines based on substantial assistance or to allow him to




      *
       This order and judgment is not binding precedent, except under the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.
withdraw his guilty plea. Exercising jurisdiction pursuant to 28 U.S.C. § 1291,

this court affirms.

                               I. BACKGROUND

      In early 1996, Walton, along with thirteen others, was charged in a series of

indictments. Walton was charged with six counts: conspiracy to distribute

cocaine and cocaine base, engaging in a continuing criminal enterprise,

possession with intent to distribute cocaine, conspiracy to launder money, and two

counts of money laundering.

      On July 12, 1996, in the course of plea negotiations, Walton was debriefed

by the Government. On July 23, 1996, pursuant to a plea agreement, Walton

entered a guilty plea to two of the six counts, conspiracy to distribute cocaine and

cocaine base (count one) and conspiracy to launder money (count eleven). The

plea agreement provided that in addition to pleading guilty to the two counts,

Walton agreed to “fully cooperate with the government by being truthful, honest

and candid as to all matters within the knowledge of this defendant as they relate

to any wrong-doing involving the defendant and others.” Under the agreement,

such cooperation included complete debriefing, testifying in federal court as

necessary, and assisting the Government in gathering evidence as deemed

necessary. The plea agreement provided that in exchange for Walton’s

cooperation and guilty plea, the Government would, among other things, advise


                                         -2-
the sentencing court of the nature and extent of Walton’s cooperation and

recommend a sentence at the low end of the applicable Sentencing Guideline

range. The agreement further provided that “[i]f, in the sole opinion of the

United States Attorney’s office, the defendant’s cooperation amounts to

substantial cooperation, the government will file a motion, pursuant to Section

5K1.1 Sentencing Guidelines . . . , to depart downward from the defendant’s

applicable guideline range, which departure shall not be less than to Level 34.”

        Of Walton’s codefendants, only Sylvester Anderson and Robert White went

to trial. In his pre-plea debriefing, Walton informed the Government that he did

not have any information relating to White. The Government anticipated,

however, calling Walton as a government witness with respect to Anderson. In

preparation for his expected testimony in Anderson’s trial, Walton was further

debriefed by the Government on July 25 and July 19, 1996. 1 During the course of

Anderson’s trial, the Government determined Walton’s testimony was not

necessary and therefore decided not to call Walton as a government witness at the

trial. Walton did, however, testify at the trial on Anderson’s behalf on August 2,

1996.




       Walton’s debriefings with the Government were not recorded and there is
        1

therefore no transcript of the debriefings. The record does, however, contain
copies of handwritten notes of the debriefings.

                                         -3-
      Before his sentencing, Walton learned the Government was not planning to

file a motion for downward departure pursuant to § 5K1.1. On November 8,

1996, Walton filed a motion seeking to compel the Government to file a motion

for downward departure, or, in the alternative, seeking permission to withdraw his

guilty plea. Following a hearing in which Walton was allowed to testify and

present other evidence, the district court denied this motion. Walton was

sentenced in May 1997 to life imprisonment on count one and 240 months on

count eleven, the sentences to run concurrently, plus supervised release. 2

                                 II. DISCUSSION

                       A. Motion to Enforce Plea Agreement

      Walton first argues the district court clearly erred in finding the

Government’s decision not to file a motion for downward departure based on

substantial assistance was made in good faith. Walton contends the Government’s

decision not to file the motion was made in bad faith and constituted a breach of

the plea agreement. Walton asserts the district court should therefore have

ordered specific performance of the plea agreement by requiring the Government

to file a downward departure motion.

      Section 5K1.1 of the Sentencing Guidelines permits a sentencing court to

depart downward from the guideline range “[u]pon motion of the government


      2
          Walton’s unopposed motions to supplement the record are hereby granted.

                                         -4-
stating that the defendant has provided substantial assistance in the investigation

or prosecution of another person who has committed an offense.” Under § 5K1.1,

the Government is not required to file a motion for downward departure when a

defendant provides substantial assistance, but instead is granted discretion to do

so. See Wade v. United States, 504 U.S. 181, 185 (1992). The Government may

bargain away this discretion in a plea agreement. See United States v. Lee, 989

F.2d 377, 379 (10th Cir. 1993). Here, however, the plea agreement expressly left

the decision to file such a motion in the sole discretion of the Government.

“When 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 [not to file the motion] in good faith.”

Id. at 380. Whether the Government acted in good faith is a factual determination

which we review for clear error. See id.

      In response to Walton’s motion seeking to compel the Government to file a

§ 5K1.1 motion, the Government asserted Walton had not provided substantial

assistance because he testified falsely at Anderson’s trial and because, as a result

of the false testimony, he compromised his ability to assist in subsequent

investigations. The Government set out portions of Walton’s testimony which it

believed to be false or at least inconsistent with Walton’s earlier statements. The

Government further stated that, contrary to Walton’s suggestions, Walton’s


                                           -5-
anticipated assistance was not limited to testifying for the Government at

Anderson’s trial. Instead, the Government asserted it had also originally planned

to pursue information Walton had about certain cocaine distributors in Los

Angeles. The Government stated that investigators in the case were unable to

pursue Walton’s knowledge of those distributors before Anderson’s trial due to

the lateness of Walton’s plea, but the investigators had planned to further

question him after the trial. Following the trial, however, the Government

determined he had provided false testimony and therefore could not be considered

a reliable source of information and could not be used as a credible witness.

Accordingly, the Government decided not to interview Walton further.

      In its order denying Walton’s motion, the district court found the

Government acted in good faith in deciding not to file a 5K1.1 motion because the

Government had reasonably determined he did not provide substantial assistance.

The court specifically found the Government made a bona fide tactical decision

that Walton’s testimony was not necessary at Anderson’s trial. The court also

found the Government reached the conclusion, based on Walton’s trial testimony,

that Walton’s credibility problems so tarnished his ability to function as an

effective witness at trial that it could not risk placing him before a jury. Further,

the court stated “the government’s position that Mr. Walton was totally

compromised as an effective witness by what it reasonably believed to be false


                                          -6-
testimony given at Mr. Anderson’s trial . . . substantiates its determination not to

pursue assistance from him [concerning other alleged drug dealers in Los

Angeles] which otherwise might have justified a decision to file for a downward

departure.”

      Walton argues that because the Government had doubts about his veracity

from the beginning 3 and because Walton’s testimony on Anderson’s behalf about

his own and Anderson’s activities was not materially different from the

debriefings, the Government’s position that Walton was no longer a credible

witness based on his testimony at the Anderson trial did not provide a good faith

basis for its refusal to file a § 5K1.1 motion.

      Based on a review of the record, the district court’s finding that the

Government decided in good faith not to file a § 5K1.1 motion is supported by the

evidence and is not clearly erroneous. Although there is evidence indicating that

in the initial debriefing government agents questioned whether Walton was telling

them the complete truth, the record establishes, and Walton apparently does not

dispute, that the Government did originally intend to call him as a witness at


      3
        Walton asserts that from the time of his initial debriefing the Government
had doubts about his credibility and truthfulness based on his apparent tendency
to downplay his own involvement in criminal activity and based on
inconsistencies between his statements and other evidence known to the
Government. Walton further notes the Government was aware before entering
into the plea agreement of a letter Walton had written to family members urging
them to lie.

                                          -7-
Anderson’s trial. Following his plea, the Government debriefed Walton twice in

preparation for that testimony. This supports the Government’s assertion that,

despite some doubts about his complete truthfulness, the Government nevertheless

believed Walton could provide reliable and truthful information in testifying

about his knowledge of Anderson’s activities. This is not undermined by the

Government’s later decision not to call Walton to testify at Anderson’s trial.

Walton has not challenged the Government’s explanation that because “the

evidence was coming in well” at the trial, the Government determined Walton’s

testimony was unnecessary. Nor has Walton otherwise contended the

Government’s decision not to have him testify was based on some improper

motive. 4

      There is also evidence, including testimony from Walton, that the

Government originally intended to elicit further information from Walton

concerning certain drug dealers in Los Angeles following Anderson’s trial.

According to the testimony of one of the government agents on the case, however,



      4
       Although Walton asserts he was willing to testify for the Government at
Anderson’s trial, such willingness does not automatically qualify him for a
reduction based on substantial assistance. Cf. United States v. Courtois, 131 F.3d
937, 939 (10th Cir. 1997) (holding that in absence of specific language in plea
agreement to the contrary, government was not required to give defendant the
opportunity to provide substantial assistance); United States v. Vargas, 925 F.2d
1260, 1266 (10th Cir. 1991) (noting plea agreement did not promise to reward
mere cooperative intent).

                                         -8-
based on Walton’s testimony at the Anderson trial, the Government determined he

had compromised his ability to assist them in further investigation.

      The record also supports the district court’s finding that the Government

reasonably believed Walton testified falsely at Anderson’s trial and therefore

compromised his ability to provide reliable information and be a credible witness

in the future. In addition to containing inconsistences with evidence provided by

other witnesses, Walton’s testimony at Anderson’s trial was inconsistent in

several respects with Walton’s own previous statements made in his debriefings

and with his admissions in his plea colloquy. For example, at Anderson’s trial,

Walton denied being involved in dealing cocaine through Juan Harkness. Walton

testified he did not tell Harkness to give cocaine to Anderson and testified he had

not done business or “any illegal things” with Harkness. This was inconsistent

with Walton’s admission to certain overt acts during his plea colloquy and was

inconsistent with Harkness’ testimony. 5 Walton also testified that although he



      5
        Walton argues he mistakenly admitted guilt as to certain of the overt acts
of the charged conspiracy at his plea colloquy. Although Walton has not
identified which particular overt acts he denies, we assume he is referring to those
overt acts relating to Harkness which were inconsistent with his trial testimony.
Despite Walton’s subsequent denial of culpability as to these overt acts, the
Government could reasonably rely on Walton’s admissions during the plea
colloquy in determining whether his testimony at Anderson’s trial was false.
Moreover, as indicated above, the Government’s contention that Walton did not
present consistent, reliable testimony was not confined to the inconsistencies
between his trial testimony and his admissions during the plea colloquy.

                                         -9-
had known Anderson since 1988, they weren’t “real close or nothing, just knew of

him.” He later stated, however, that it would not surprise him to learn records

showed Anderson had paged him 277 times in less than two years. Walton also

denied telling government agents Anderson got cocaine in from California and

that he “would get it in as powder.” This testimony was inconsistent with his

debriefings, when he stated that “Chilly [Anderson] would get it in as powder.”

Walton did, however, testify he remembered telling government agents Tracy

Johnson may have cooked cocaine for Anderson. 6




      6
        In the hearing on Walton’s motion to withdraw his plea, Walton asserted
that his testimony in the Anderson trial was consistent with his statements in the
earlier debriefings. In his testimony at this hearing, however, Walton made a
number of inconsistent statements regarding his testimony at the Anderson trial
and his debriefings. For example, Walton testified he never told the Government
that Anderson would get his cocaine in as powder and that Tracy Johnson might
have cooked it. Walton admitted, however, that the notes from the initial
debriefing stated that Anderson cooked his cocaine. Walton also testified that in
the initial debriefing with the Government he denied any involvement with
Harkness. He later admitted, however, that Harkness’ name never came up in the
first debriefing. This latter statement was consistent with the notes of the
debriefing, which do not reference Harkness, and with the Government’s
contention that government agents did not specifically inquire about Harkness
until the later debriefings.
       Carl Cornwell, Anderson’s attorney, also testified at this hearing. Cornwell
testified that when he spoke with Walton before Walton testified on Anderson’s
behalf at the trial, Cornwell was aware of inconsistencies between Walton’s
statements and the notes of the debriefings. Cornwell testified he pointed this out
to Walton and told Walton that if his testimony was inconsistent with the
information he provided in the debriefings, it would be unlikely the Government
would file a § 5K1.1 motion.

                                        -10-
      Based on the above, the district court did not clearly err in finding the

Government acted in good faith in determining Walton did not provide substantial

assistance and accordingly deciding not to file a § 5K1.1 motion.

                      II. Motion to Withdraw Guilty Plea

      Walton alternatively contends the district court erred in refusing to allow

him to withdraw his guilty plea. Walton essentially argues he should have been

allowed to withdraw his plea based on the Government’s alleged breach of the

plea agreement by failing to file a § 5K1.1 motion and based on his denial of

culpability regarding specific overt acts of the conspiracy to which he pled guilty.

      Rule 32 of the Federal Rules of Criminal Procedure provides that the court

may permit a defendant to withdraw a guilty plea prior to sentencing “if the

defendant shows any fair and just reason.” Fed. R. Crim. P. 32(e). A defendant

has no automatic entitlement to withdraw a guilty plea. See United States v.

Rhodes, 913 F.2d 839, 845 (10th Cir. 1990). The burden lies with the defendant

to establish a “fair and just reason” for withdrawal. See id. Relevant factors in

determining whether a defendant’s reason for withdrawal is “fair and just”

include:

      (1) whether the defendant has asserted his innocence; (2) prejudice to
      the government; (3) delay in filing defendant’s motion and, if so, the
      reason for the delay; (4) inconvenience to the court; (5) defendant’s
      assistance of counsel; (6) whether the plea is knowing and voluntary;
      and (7) waste of judicial resources.


                                         -11-
United States v. Elias, 937 F.2d 1514, 1520 (10th Cir. 1991). This court reviews

the district court’s denial of a motion to withdraw a guilty plea for abuse of

discretion. See id.

      Walton concedes withdrawal of his plea would create some prejudice to the

Government, would inconvenience the court, and would cause the waste of

judicial resources. He argues, however, that based on the remaining factors the

district court should have allowed him to withdraw his plea. Walton contends

that since his plea he has consistently maintained his innocence of particular overt

acts of the charged conspiracy. He further asserts that his filing of his withdrawal

motion approximately two months after learning the Government was not

planning to file a § 5K1.1 motion did not constitute undue delay. Walton argues

his counsel’s admission in an affidavit that it was a mistake for Walton to admit

guilt to all the overt acts in the conspiracy count indicates he did not have close

assistance of counsel. Finally, he asserts his plea was not knowing and voluntary

based on his allegedly mistaken admission of the overt acts.

      In rejecting Walton’s motion to withdraw his plea, the district court first

found the Government’s decision not to file a § 5K1.1 motion did not itself

constitute sufficient reason for withdrawing the plea. This was not an abuse of

discretion. The plea agreement did not guarantee the Government would file a

§ 5K1.1 motion, but expressly left the decision to file such a motion to the sole


                                         -12-
discretion of the Government. During the plea colloquy, Walton stated he

understood the terms of the agreement and understood the Government had sole

discretion in deciding whether or not to file the motion. As discussed above, the

evidence supports the district court’s finding that the Government acted in good

faith in electing not to file a § 5K1.1 motion. Accordingly, the district court

could properly determine Walton’s dissatisfaction with the Government’s decision

not to file a § 5K1.1 motion was insufficient reason to withdraw his plea.

      The remaining factors identified by Walton also do not require reversal of

the district court’s decision. Although Walton asserts he mistakenly admitted

certain overt acts of the charged drug conspiracy, he does not deny he was guilty

of a drug trafficking conspiracy. Therefore, as the district court recognized,

“there is no claim of either actual innocence or the availability of some other

defense by which the defendant might be vindicated.” In challenging the district

court’s finding that there was a long unexplained delay in filing the withdrawal

motion, Walton’s only explanation for waiting over two months after learning the

Government would not file a § 5K1.1 motion before requesting to withdraw his

plea was that he and his attorney were “weighing options and preparing the

motion.” The record also supports the district court’s finding that despite

Walton’s assertion he did not have close assistance of counsel, Walton was “ably

and aggressively represented by experienced and competent counsel.”


                                         -13-
      There is no evidence supporting Walton’s claim that his plea was not

knowing and voluntary. During the plea colloquy, the district court questioned

Walton carefully to determine Walton understood the terms of the plea agreement

and the consequences of his guilty plea. Additionally, as the district court noted,

the plea colloquy was specific, detailed, and “unequivocally called on Mr. Walton

to admit his guilt and to admit he committed the overt acts” itemized by the

Government.

      Finally, as the district court noted and Walton has conceded, the factors of

prejudice to the Government, inconvenience to the court, and waste of judicial

resources all weigh against Walton. Based on the above, the district court did not

abuse its discretion in denying Walton’s motion to withdraw his plea.

                               III. CONCLUSION

      The district court did not clearly err in finding the Government acted in

good faith in deciding not to file a motion for downward departure under U.S.S.G.

§ 5K1.1. The district court further did not abuse its discretion in




denying Walton’s motion to withdraw his guilty plea. Accordingly, this court

AFFIRMS.

                                       ENTERED FOR THE COURT:


                                         -14-
Michael R. Murphy
Circuit Judge




 -15-
