                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               SEP 23 1997
                                  TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                   Clerk

 UNITED STATES OF AMERICA,

               Plaintiff-Appellee,
                                                     Case No. 96-5224
 v.
                                                     (D.C. 96-CR-64-B)
 JAMES JUNIOR SPEAR,                                 (Northern District of Oklahoma)

               Defendant-Appellant.


                            ORDER AND JUDGMENT *


Before ANDERSON, HENRY, and BRISCOE, Circuit Judges.


      After examining the briefs and appellate record, this panel has unanimously

determined that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

      James J. Spear pled guilty to a one-count information charging the use of

an interstate facility (the United States Mail) to promote an unlawful activity

(drug trafficking), in violation of 18 U.S.C. § 1952. He was sentenced to 60


      *
               This order and judgment is not binding precedent, except under the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.
months’ imprisonment, based, in part, on the presentence report’s finding that the

offense involved 254.57 grams of heroin and 5 grams of cocaine. Mr. Spear

appeals the district court’s calculation as to the quantity of drugs involved,

alleging it was erroneously based on information Mr. Spear offered after he began

to cooperate with the government, in violation of U.S. Sentencing Guideline §

1B1.8(a).

      We review the district court’s factual findings underlying the sentence for

clear error, see United States v. Evans, 985 F.2d 497, 499 (10th Cir. 1993), and

we review de novo the district court’s interpretation of the sentencing guidelines.

See id. For the reasons stated herein, we affirm.

                                  BACKGROUND

      Mr. Spear was arrested immediately following the controlled delivery of an

Express Mail package containing 13.6 grams of heroin and 5 grams of cocaine.

After Mr. Spear was advised of his Miranda rights, Postal Inspector Rey Santiago

attempted to obtain a statement from Mr. Spear. Inspector Santiago terminated

the interview after Mr. Spear stated that the arresting officers had threatened him.

Inspector Santiago stated that Mr. Spear indicated he would like to confer with

the Inspector at a later date.

      Mr. Spear was held on state charges stemming from the arrest. Three days

after the arrest, Inspector Santiago again contacted Mr. Spear for an interview.


                                          2
Mr. Spear waived his Miranda rights and as yet had not consulted with an

attorney. At this point, no federal charges had been brought against Mr. Spear.

      During the interview, Mr. Spear asked for Inspector Santiago’s “help,”

which the Inspector agreed to try to provide. Rec. vol. III at 68 (testimony of

Inspector Santiago). The Inspector informed Mr. Spear that he “could only help

him to an extent of saying that he had cooperated or hadn’t cooperated.” Id. at

89. Specifically, Inspector Santiago informed Mr. Spear that “there are

sentencing guidelines within the federal system that can’t be bent to a certain

degree . . . .” Id. at 68. The Inspector further testified that:

      As I explain to everyone who asks me for that type of help, I
      explained to him that it’s not ultimately up to me. And even if the
      United States Attorney shown [sic] leniency on him, it would
      ultimately be up to a judge, . . . but that his cooperation would be
      made known.

Id.

      Upon receipt of the Inspector’s agreement to “help,” Mr. Spear informed

the Inspector about 17 additional Express Mail packages he had received, each

containing at least a ½ ounce quantity of heroin. Mr. Spear subsequently pled

guilty to one count of using the United States Mail to promote an unlawful

activity. In the presentencing report, the amounts from the additional packages

(totaling 254.57 grams heroin and 5 grams cocaine) were aggregated to serve as

the basis for the drug quantity calculation. Mr. Spear objected to the use of the


                                            3
additional packages in calculating the quantity of drugs involved in the offense,

but the district court overruled his objection. Consequently, Mr. Spear was

sentenced based on the presentence report to 60 months’ imprisonment.

                                   DISCUSSION

      Mr. Spear, relying on United States Sentencing Guidelines Manual §

1B1.8(a), argues that Inspector Santiago breached the plea agreement by inducing

him to supply self-incriminating information. Plea agreements are based on

contract principles. “‘When a plea rests in any significant degree on a promise or

agreement of the prosecutor, so that it can be said to be part of the inducement or

consideration, such promise must be fulfilled.’” United States v. Cooper, 70 F.3d

563, 565 (10th Cir. 1995) (quoting Santobello v. New York, 404 U.S. 257, 269

(1971)).

      Section 1B1.8(a) provides:

      Where a defendant agrees to cooperate with the government by
      providing information concerning unlawful activities of others, and
      as part of that cooperation agreement the government agrees that
      self-incriminating information provided pursuant to the agreement
      will not be used against the defendant, then such information shall
      not be used in determining the applicable guideline range, except to
      the extent provided in the agreement.

      The government on the other hand, relies on our holding in Evans, 985 F.2d

at 499, which outlines two separate agreements that must exist before § 1B1.8(a)

takes effect: (1) the defendant must agree to cooperate with the government by


                                         4
providing information concerning the unlawful activity of others, and (2) the

government must agree that self-incriminating information provided pursuant to

the agreement will not be used against the defendant.

      Here, it is undisputed the first element is present. Mr. Spear was

forthcoming with information involving the unlawful activities of others (and of

himself).

      The second element, however, is not present in this case. The record is

devoid of any evidence that the Inspector agreed that the government would

forego the use of self-incriminating evidence provided by Mr. Spear. Rather, the

Inspector merely informed Mr. Spear that he would advise the United States

Attorney of Mr. Spear’s cooperation.

      This court has held that such a statement by a law enforcement agent is

insufficient to trigger the protections of § 1B1.8(a). See Evans, 985 F.2d at 499.

Moreover, the Inspector emphasized to Mr. Spear the rigidity of the sentencing

guidelines, further undermining Mr. Spear’s claim that the Inspector’s words

could be construed as a promise not to use Mr. Spear’s statements against him.

See Rec. vol. III at 88 (Inspector Santiago informed Mr. Spear upon Mr. Spear’s

request for help “[t]hat if he was prosecuted through the federal system, that it did

have sentencing guidelines that [the Inspector] didn’t have any control over”).

Finally, there is nothing in the record that suggests physical coercion, or that the


                                           5
Inspector threatened Mr. Spear. See id. at 67-71 (testimony of Inspector

Santiago); 50-51 (testimony of Mr. Spear).

      It is undisputed that the government “is accountable with regard to any

promise made to induce a defendant to plead guilty.” Cooper, 70 F.3d at 565.

Here, however, “[n]o reasonable person could construe the statement as a promise

not to use self-incriminating information against” Mr. Spear. Evans, 985 F.2d at

499; see United States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir. 1990) (arresting

officer told defendant that if he cooperated “his cooperation would be helpful to

him,” which did not comprise an agreement not to use self-incriminating

information against defendant). Accordingly, we conclude that there was no

agreement not to use self-incriminating information against Mr. Spear. 1

      The mandate shall issue forthwith.

                                                 Entered for the Court,


                                                 Robert H. Henry
                                                 Circuit Judge



      1
             Moreover, the plea agreement itself states:

      No agreements, representations, or understandings have been made between
      the parties in this case, other than those which are explicitly set for in this
      plea agreement and none will be entered into unless executed in writing and
      signed by all the parties.

      Aple’s Br. at 11 (quoting plea agreement, ¶ F).

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