                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT

                                         No. 98-41146
                                       Summary Calendar

UNITED STATES OF AMERICA,
                                                                               Plaintiff-Appellee,
                                               versus
DOUGLAS STEELE REID,
                                                                            Defendant-Appellant.


                        Appeal from the United States District Court
                            for the Southern District of Texas
                                        (B-98-CR-159-2)


                                         August 2, 1999
Before POLITZ, HIGGINBOTHAM, and WIENER, Circuit Judges.
POLITZ, Circuit Judge:*
       Douglas Steele Reid appeals his conviction and sentence following a guilty plea
for possession of cocaine with intent to distribute, in violation of 21 U.S.C. § 841(a)(1)
& (b)(1)(B). For the reasons assigned, we affirm.

                                       BACKGROUND
       Reid pled guilty pursuant to a plea agreement which provided that, in exchange for
providing truthful information, the government would recommend that he receive full
credit for acceptance of responsibility and be sentenced at the bottom of the Guideline
level. The plea agreement further stated that, in exchange for substantial assistance, the


        *
        Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
government would recommend a reduction of one-third from the bottom of the Guideline
level.
         Finally, the plea agreement provided that the government would be relieved from
its obligations if the defendant did not fulfill his, or if the defendant committed or was
arrested for any crime.           The agreement also noted that it did not apply to the
government’s decision whether to file a substantial assistance departure motion,
reflecting that the decision to do so was vested within the “sole discretion” of the
government.
         While on bond, Reid tested positive for cocaine use. Accordingly, the presentence
report did not recommend a downward adjustment for acceptance of responsibility.
Further, the government decided not to move for a downward departure based upon
substantial assistance, contending that Reid had not provided all the information he
possessed regarding his criminal activities.
         After several evidentiary hearings, the district court determined that Reid had not
satisfied the standard for a substantial assistance downward departure.                       Before
sentencing, Reid attempted to withdraw his guilty plea, a motion which the district court
denied. Reid was sentenced to 87 months imprisonment, four years of supervised
release, and the $100 special assessment.

                                             ANALYSIS
         Reid first contends that the trial court erred in not allowing him to withdraw his
guilty plea. We review that ruling for an abuse of discretion.2 If a motion to withdraw



         2
             United States v. Brewster, 137 F.3d 853 (5th Cir.), cert. denied, 119 S. Ct. 247 (1998).

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a plea of guilty is made before sentence is imposed, the district court may permit the plea
to be withdrawn if the defendant shows any “fair and just reason.”3
       Reid based his motion to withdraw upon a statement made by the trial judge at the
initial guilty plea hearing to the effect that if the court chose not to follow the terms of
the plea agreement, the defendant would be allowed to withdraw the plea. The plea
agreement, however, did not provide Reid with an unconditional right to acceptance of
responsibility and substantial assistance departures. It is manifest that it was Reid, not
the court or the government, who breached the provisions of the plea agreement by his
testing positive for cocaine use and by his failure to fully cooperate and provide
information. The district court did not abuse its discretion in refusing to allow a
withdrawal of the guilty plea.
       Next, Reid contends that the government breached the plea agreement by failing
to move for a downward departure for substantial assistance under USSG § 5K1.1, and
that the district court abused its discretion in not requiring the


government to comply with the plea agreement. We review a claim for breach of a plea
agreement de novo.4
       If the plea agreement states that the government retains “sole discretion” over the
decision to move for a substantial assistance departure, we review the failure to make
such a motion only for an unconstitutional motive.5 Because the instant plea agreement

      3
          Fed. R. Crim. P. 32(e); United States v. Still, 102 F.3d 118 (5th Cir. 1996).
      4
          United States v. Laday, 56 F.3d 24 (5th Cir. 1995).
      5
          United States v. Price, 95 F.3d 364 (5th Cir. 1996).

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vested in the government the sole discretion to make this departure motion, and because
Reid has not alleged any unconstitutional motive, we do not perceive the government’s
declining to move for a substantial assistance downward departure to be a breach of the
agreement.6
       Finally, Reid contends that the government breached the plea agreement by failing
to recommend a downward adjustment for acceptance of responsibility under USSG §
3E1.1, and that the district court abused its discretion for not granting this reduction. We
review the denial of an acceptance of responsibility reduction with even more deference
than the pure clearly erroneous standard.7 Because Reid engaged in criminal activity
after his arrest by testing positive for cocaine use while on bond, it was not error for the
government or the district court to deny him the acceptance of responsibility reduction.8
       AFFIRMED.




           6
             Despite the government’s sole discretion over this matter, the district court, without
objection from the government, heard evidence regarding Reid’s level of cooperation. We agree with
the district court’s factual findings that Reid was evasive and did not fully cooperate with the
government. Accordingly, neither the district court nor the government committed error by not
requesting and granting the substantial assistance departure.
       7
           United States v. Flucas, 99 F.3d 177 (5th Cir. 1996).
       8
           See id. at 180; United States v. Rickett, 89 F.3d 224 (5th Cir. 1996).

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