                                                                        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,
                                                        No. 97-3172
v.                                                  (District of Kansas)
                                                 (D.C. No. 95-CR-20086-3)
JOHN L. THOMPSON,

          Defendant-Appellant.




                                ORDER AND JUDGMENT *


Before LUCERO, McKAY, and MURPHY, Circuit Judges.


      Defendant John L. Thompson appeals the district court’s denial of his

motion seeking to compel the Government to file a motion for downward

departure based on his cooperation. Thompson also appeals his sentence.




      *
       This order and judgment is not binding precedent, except under the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.
Exercising jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), this

court affirms. 1

                               I. BACKGROUND

       On January 4, 1996, Thompson was indicted for conspiring to distribute

more than five kilograms of cocaine and 500 grams of cocaine base, in violation

of 21 U.S.C. § 846. On June 26, 1996, an Information was filed charging

Thompson with using a telephone to facilitate a drug transaction, in violation of

21 U.S.C. § 843(b). On June 28, 1996, pursuant to a plea agreement, Thompson

entered a guilty plea to the Information. In exchange for his guilty plea, the

Government agreed to dismiss the charge pending against him in the earlier

Indictment. The plea agreement also 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 from the guideline level range.”

       Before his sentencing, Thompson learned the Government did not plan to

file a motion for downward departure pursuant to U.S.S.G. § 5K1.1. Thompson

therefore filed a motion to compel the Government to file a § 5K1.1 motion.



       1
        After examining the briefs and the appellate record, this panel has
determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.

                                         -2-
      Thompson was sentenced on May 28, 1997. At the sentencing hearing, the

district court denied Thompson’s motion to compel the Government to file a

§ 5K1.1 motion. The court also denied Thompson’s request for a reduced base

offense level for a mitigated role in the offense and rejected Thompson’s

argument that the quantity of cocaine attributable to him for sentencing purposes

was inaccurate. The district court then sentenced Thompson to the statutory

maximum term of 48 months of imprisonment, plus supervised release and a

special assessment.

      On appeal, Thompson argues the district court erred in (1) denying his

motion to compel the Government to file the motion for downward departure; (2)

calculating the drug quantity attributable to him for sentencing purposes; and (3)

refusing to reduce his base offense level based on his role in the offense.

                                 II. DISCUSSION

                      A. Motion to Enforce Plea Agreement

      Thompson first argues the Government’s decision not to file a motion for

downward departure was made in bad faith and in violation of the plea agreement.

In support of his argument, Thompson asserts he rendered substantial cooperation

based on his three-hour, pre-plea debriefing and his willingness to testify against




                                         -3-
codefendant James Walton at various post-plea proceedings initiated by Walton. 2

Thompson also contends that based on his pre-plea debriefing, when the

Government agreed to file a motion for downward departure if he rendered

substantial cooperation, it was informed of the extent of his knowledge of

criminal activities and thus the extent of his ability to provide substantial

cooperation.

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

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

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, 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, 380 (10th Cir. 1993). Here,

however, the plea agreement expressly left the decision to file a § 5K1.1 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



      2
       In his motion to compel the Government to file a downward departure
motion, Thompson asserted the Government had requested that he testify at the
various post-plea proceedings initiated by codefendant Walton, but later
determined his testimony was unnecessary.

                                          -4-
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 Thompson’s motion to compel the Government to file a

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

assistance warranting a § 5K1.1 departure. With respect to Thompson’s

cooperation in the pre-plea debriefing, the Government asserted Thompson had

received the benefit of this cooperation because he was able to enter into a plea

agreement dismissing a second charge and providing that the Government would

inform the sentencing court of his cooperation and would recommend he receive a

sentence at the lowest end of the Sentencing Guideline range. The Government

therefore maintained that a § 5K1.1 motion would require additional assistance.

The Government further indicated that as of the time of sentencing, Thompson

had provided no additional information or assistance which would warrant a

departure under § 5K1.1. During Thompson’s sentencing, the district court

agreed with the Government’s arguments and denied Thompson’s motion. The

court further stated that even if the Government had made the motion, the court

would have denied the departure.




                                         -5-
       Thompson has not shown the district court erred in finding the

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

Although Thompson asserts that based on his pre-plea debriefing the Government

was aware of the extent of his knowledge before entering into the plea agreement,

Thompson has not shown that based on the debriefing the Government determined

he could provide no further assistance. To the contrary, the Government’s

original intention to have him testify at various proceedings involving a

codefendant indicates the Government believed in good faith that he was able to

provide further assistance.

      Thompson’s assertion that he has provided substantial cooperation is also

inadequate to entitle him to his requested relief. See Wade, 504 U.S. at 186 (“[A]

claim that a defendant merely provided substantial assistance will not entitle a

defendant to a remedy or even to discovery or an evidentiary hearing.”). The plea

agreement expressly provides that the determination of whether he provided

substantial cooperation was to be made solely by the Government. Thompson

does not contend the Government promised him his cooperation in the pre-plea

debriefing was itself sufficient to constitute substantial assistance for purposes of

a § 5K1.1 motion. The plea agreement does not contain or reflect such a promise,

and Thompson has not alleged the Government made a promise not contained in

the plea agreement.


                                          -6-
      Likewise, Thompson’s asserted willingness to testify on the Government’s

behalf in various proceedings involving a codefendant does not itself constitute

substantial assistance such as would require the Government to file a § 5K1.1

motion. Cf. United States v. Vargas, 925 F.2d 1260, 1266 (10th Cir. 1991). A

defendant does not have the right to dictate the strategy decisions of the

prosecution; instead, such decisions are properly within the sole discretion of the

Government, limited only by the requirement that the Government make such

decisions in good faith. Thompson has not alleged the Government declined to

have him testify in such proceedings for improper motives, thus preventing him in

bad faith from providing substantial assistance. Cf. United States v. Courtois,

131 F.3d 937, 939 (10th Cir. 1997).

      Moreover, in the absence of language in the plea agreement promising

Walton that he would be given the opportunity to provide assistance, the fact that

another opportunity did not arise for him to provide further assistance does not

render the government’s decision not to file a § 5K1.1 motion a bad faith

decision. Cf. id. (holding that in absence of specific language providing

otherwise, government did not obligate itself under plea agreement to give

defendant opportunity to render substantial assistance). We thus reject




                                         -7-
Thompson’s assertion the district court erred in denying his motion to compel the

Government to file a § 5K1.1 motion. 3

                        B. Calculation of Drug Quantity

      Thompson next argues the district court erred in calculating the amount of

drugs attributable to him for purposes of determining his base offense level. See

U.S.S.G. § 2D1.1(a)(3) (setting base offense level according to drug quantity

attributable to defendant).

      According to the presentence report, Thompson acted as a courier in a drug

conspiracy led by codefendant James Walton. The coconspirators purchased large

amounts of cocaine in Los Angeles and then transported and sold the cocaine in



      3
        Thompson also asserts that because the district court did not determine the
meaning of the term “substantial cooperation” as used in the plea agreement, the
court “was in no position to determine whether the Government used its discretion
regarding whether defendant had rendered substantial cooperation, in good faith.”
This court rejects Thompson’s argument. Although the plea agreement refers to
“substantial cooperation” rather than “substantial assistance in the investigation
or prosecution of another,” the language employed in U.S.S.G. § 5K1.1, the plea
agreement provision at issue also explicitly refers to filing a motion under
§ 5K1.1. It would therefore be reasonable to assume the term “substantial
cooperation” was intended to be synonymous with the term “substantial
assistance” as used in § 5K1.1. There is no indication in the record that
Thompson understood “substantial cooperation” to have a meaning distinct from
the “substantial assistance” language of § 5K1.1. Even assuming there is a
material difference between “substantial cooperation” and “substantial
assistance,” Thompson has not adequately explained how ascribing a different
meaning to “cooperation” substantively alters the analysis to be employed by the
district court in determining whether the Government acted in good faith in
deciding not to file a § 5K1.1 motion.

                                         -8-
the Kansas City area. The drug proceeds were then transported back to California

for further cocaine purchases. In April 1994, Thompson was stopped in Louisiana

carrying approximately $33,000 in suspected drug proceeds. Thompson was

arrested and the money was seized. Following his release, Thompson made

telephone calls to Walton’s pager to advise Walton of the seizure. Thompson

made the calls from both Louisiana and Kansas. Pursuant to his plea, Thompson

admitted the $33,000 was drug proceeds and admitted he was attempting to carry

the proceeds from New Orleans to Los Angeles. 4

      In calculating the drug equivalent of the $33,000 seized from Thompson,

the district court relied on testimony that members of the drug conspiracy for

which Thompson had acted as a courier purchased cocaine in California for

$15,000 to $16,000 per kilogram. The cocaine was then sold in Kansas for

$21,000 to $22,000 per kilogram. Based on the evidence that Thompson was

transporting the $33,000 in drug proceeds to Los Angeles for Walton, the court

used the $22,000 per kilogram figure to determine that the drug equivalent of the

$33,000 was approximately 1.5 kilograms of cocaine.




      4
       The presentence report also indicated that in January 1994, Thompson
rented a motel room in Los Angeles for Michael Sullivan, another courier in the
drug conspiracy, to be used while awaiting a shipment of cocaine which Sullivan
was to deliver to Kansas City.

                                        -9-
      Thompson argues the evidence did not establish that the $33,000 seized

from him in New Orleans was related to cocaine sales made by Walton in Kansas

City and he asserts the district court therefore erred in converting the $33,000 to

1.5 kilograms of cocaine. We review the district court’s drug quantity calculation

for clear error. See United States v. Cruz Camacho, 137 F.3d 1220, 1225 (10th

Cir. 1998).

      At the sentencing hearing, Thompson argued the drug quantity should be

lower because cocaine could typically be purchased on the street in Kansas for

$100 per gram (or $100,000 per kilogram). In support of this argument,

Thompson introduced the affidavit of a Lawrence, Kansas police officer. The

district court rejected Thompson’s argument because Thompson failed to show

cocaine was sold in this case by members of the conspiracy for $100 per gram.

As the district court recognized, the only evidence in the record indicated the

coconspirators sold cocaine for approximately $22,000 per kilogram. Moreover,

the evidence showed the organization in which Thompson was involved was in

the business of buying and selling kilogram quantities of cocaine, rather than

gram quantities. Therefore, as the court stated, the larger quantities in which the

coconspirators were dealing “accounts for a lower per gram price than what

would occur in a retail sale on the street to a user of cocaine.”




                                          -10-
      The court further rejected Thompson’s argument that the $33,000 was not

connected to the California-Kansas drug conspiracy. Instead, the court found the

evidence linked Thompson and the specific transaction in question to the larger

conspiracy led by Walton. Thompson admitted the $33,000 was drug proceeds

and admitted he was attempting to carry the proceeds to Los Angeles. Further,

Thompson admitted that after the money was seized he called Walton both from

Louisiana and from Kansas to inform him of the seizure. Based on the evidence

in the record, the district court did not clearly err in relying on the $22,000 per

kilogram figure in calculating the drug quantity.

                         C. Reduction for Mitigating Role

      Thompson next argues the district court erred by not reducing his sentence

for a mitigating role. Thompson asserted before the district court that he should

receive a four-level reduction to his base offense level pursuant to U.S.S.G.

§ 3B1.2(a).

      U.S.S.G. § 3B1.2 vests the district court with discretion to grant a base

offense level reduction if it finds a defendant played a mitigating role in a given

offense. 5 The court may reduce the defendant’s offense level by four levels if it



      5
       Pursuant to U.S.S.G. § 2D1.6, the base offense level for the use of a
telephone in committing a drug offense is determined by the offense level
applicable to the underlying offense. In this case, the underlying offense was
possession with intent to distribute cocaine.

                                          -11-
finds the defendant was a “minimal” participant in the criminal activity, by two

levels if the defendant was a “minor” participant in the activity, or by three levels

if the defendant's actions fell between a minimal and minor role. U.S.S.G.

§ 3B1.2. Application note 4 to § 3B1.2 provides that when a defendant “has

received a lower offense level by virtue of being convicted of an offense

significantly less serious than warranted by his actual criminal conduct, a

reduction for a mitigating role under this section ordinarily is not warranted

because such defendant is not substantially less culpable than a defendant whose

only conduct involved the less serious offense.”

      We review the district court's factual findings regarding a defendant's role

in the offense for clear error and give due deference to the court’s application of

the Sentencing Guidelines to the facts. See United States v. Smith, 131 F.3d

1392, 1399 (10th Cir. 1997), cert. denied, 118 S. Ct. 1109 (1998). The burden is

on the defendant to establish by a preponderance of the evidence that he is

entitled to an offense level reduction under the Sentencing Guidelines. See

United States v. McCann, 940 F.2d 1352, 1359 (10th Cir. 1991).

      Thompson argues that his role in the relevant offense, possession with

intent to distribute cocaine, was merely to act as a courier between the buyer and

seller of the cocaine. He asserts he was therefore less culpable than both the

buyer and seller and is accordingly eligible for a mitigating role reduction.


                                         -12-
      The determination of whether a defendant is entitled to a reduction under

§ 3B1.2 is “heavily dependent upon the facts of the particular case.” U.S.S.G.

§ 3B1.2 background. Thompson’s assertion that he acted as a courier does not

automatically mean he was a minor or minimal participant entitled to a § 3B1.2

reduction. This court has rejected the argument that a defendant’s courier status

alone compels an offense level reduction under § 3B1.2. See, e.g., United States

v. Ballard, 16 F.3d 1110, 1115 (10th Cir. 1994). Likewise, Thompson’s

contention that because he was a courier he was necessarily less culpable than

other participants does not necessarily mean he played a minimal or minor role in

the offense. See United States v. Caruth, 930 F.2d 811, 815 (10th Cir. 1991);

United States v. Walker, 1 F.3d 423, 427-28 (6th Cir. 1993).

      Reviewing the record, this court concludes the district court’s findings that

Thompson was not a minimal or minor participant are supported by the evidence

and the district court’s decision not to grant a reduction is consistent with the

Guidelines. In rejecting Thompson’s request for a reduction under § 3B1.2, the

court first recognized Thompson had already received the benefit of pleading

guilty to the less serious offense of possession rather than a drug conspiracy

offense and therefore was not entitled to a further reduction because his conduct

in the larger criminal enterprise was less serious than other participants. See

U.S.S.G. § 3B1.2 application note 4; cf. United States v. Isaza-Zapata, No. 97-


                                         -13-
5443, 1998 WL 294021, at *6 (3d Cir. June 8, 1998); United States v. Pena, 33

F.3d 2, 3 (2d Cir. 1994). The court also noted Thompson was only held

accountable for the drug amount involved in the specific offense to which he pled

guilty (i.e., the drug equivalent of the $33,000 found on Thompson when he was

arrested), rather than the entire quantity of drugs involved in the overall

conspiracy. 6 Therefore, a reduction based on a mitigating role in the larger

conspiracy was not appropriate. See United States v. Burnett, 66 F.3d 137, 140-

41 (7th Cir. 1995) (noting that when a courier is held accountable only for drug

amounts personally carried, a reduction is not necessarily warranted even if

courier played minor role in relation to larger drug enterprise); see also Isaza-

Zapata, 1998 WL 294021, at *6; United States v. Belitz, 141 F.3d 815, 818-19

(8th Cir. 1998); United States v. Fernandez, 92 F.3d 1121, 1122-23 (11th Cir.

1996); United States v. Gomez, 31 F.3d 28, 31 (2d Cir. 1994); United States v.

Olibrices, 979 F.2d 1557, 1560 (D.C. Cir. 1992).

      The district court also found that in attempting to transport drug proceeds

to Walton in Los Angeles, Thompson was not a minimal participant with respect

to the specific offense of possession with intent to distribute. The court further

determined that even if it were to consider Thompson’s role in the overall


      6
       The district court specifically noted that Thompson had not been credited
with the cocaine seized from Sullivan, for whom Thompson allegedly rented a
motel room in California for use while waiting for a cocaine shipment.

                                         -14-
criminal conspiracy, Thompson was not a minimal participant in the larger

enterprise. The court found Thompson was not “somebody who, on a one-time

basis, makes an incredibly bad decision to participate as a courier.” Cf. U.S.S.G.

§ 3B1.2 application note 2 (noting reduction for minimal participant may be

appropriate when defendant “played no other role in a very large drug smuggling

operation than to offload part of a single marihuana shipment” or when defendant

“was recruited as a courier for a single smuggling transaction involving a small

amount of drugs”). Instead, the court found the evidence established that

Thompson had multiple ties to codefendant James Walton and his drug trafficking

organization and was “a garden-variety participant in Mr. Walton’s conspiracy.”

Cf. id. § 3B1.2 application note 1 (stating defendant’s “lack of knowledge or

understanding of the scope and structure of the enterprise and of the activities of

others is indicative of a role as minimal participant”); Isaza-Zapata, 1998 WL

294021, at *3 (noting relevant factors in determining whether courier is a minor

participant include defendant’s relationship to other participants and defendant’s

awareness of the nature and scope of the criminal enterprise). These findings are

supported by the record and are not clearly erroneous. We therefore conclude the

district court did not err in refusing to grant a reduction based on Thompson’s

role in the offense.

                               III. CONCLUSION


                                         -15-
      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 clearly err in computing the drug

quantity attributable to Thompson or in determining Thompson did not play



a minor or minimal role in the offense. Accordingly, this court AFFIRMS.

                                              ENTERED FOR THE COURT:



                                              Michael R. Murphy
                                              Circuit Judge




                                       -16-
