                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 15a0287n.06

                                         No. 13-5264

                         UNITED STATES COURT OF APPEALS
                              FOR THE SIXTH CIRCUIT

                                                                                 FILED
UNITED STATES OF AMERICA,                              )                     Apr 17, 2015
                                                       )                DEBORAH S. HUNT, Clerk
       Plaintiff-Appellee,                             )
                                                       )
                                                              ON APPEAL FROM THE
               v.                                      )
                                                              UNITED STATES DISTRICT
                                                       )
                                                              COURT FOR THE WESTERN
STEPHEN COOK,                                          )
                                                              DISTRICT OF TENNESSEE
                                                       )
       Defendant-Appellant.                            )
                                                       )
                                                       )


BEFORE: MOORE, GIBBONS, and GRIFFIN, Circuit Judges.

       GRIFFIN, Circuit Judge.

       Defendant Stephen Cook appeals his sentence on the basis that the government breached

the parties’ plea agreement. The government seeks to enforce an appeal-waiver provision in the

plea agreement. We grant the government’s motion to dismiss based upon the appeal waiver.

                                               I.

       Beginning in 2009, the United States Drug Enforcement Administration (“DEA”)

investigated a narcotics distribution ring that used commercial tractor-trailers to transport

significant quantities of marijuana throughout the United States. After a positive K-9 alert,

border patrol agents searched a tractor-trailer registered to defendant Stephen Cook, uncovering

over 1,000 kilograms of marijuana. Authorities then obtained a wiretap to monitor Cook’s

telephone calls.
No. 13-5264
United States v. Cook


       A grand jury indicted Cook and 15 others for conspiracy to possess with intent to

distribute at least 1,000 kilograms of marijuana and conspiracy to possess with intent to

distribute at least 500 grams of methamphetamine. Cook pled guilty to the marijuana count. In

exchange, the government agreed to recommend that Cook receive the full reduction for

acceptance of responsibility “provid[ed] [he] commits no new criminal offenses and continues to

demonstrate an affirmative acceptance of responsibility, including acknowledging guilt in open

court to the facts as set out in the indictment.” Cook waived his right to appeal his sentence

“unless the sentence exceeds the maximum permitted by statute or is the result of an upward

departure from the guideline range that the court establishes at sentencing,” and waived his right

to “challenge the manner in which the sentence was determined.”

       In calculating the base offense level, the Presentence Investigation Report (“PSR”)

included the following drug amounts: 6,622.56 kilograms marijuana, 30 kilograms cocaine

(6,000 kilograms marijuana equivalent), and 2.47 kilograms methamphetamine (4,944.24

kilograms   marijuana    equivalent),   totaling   17,566.8   kilograms   marijuana   equivalent.

Additionally, the PSR applied a four-point role enhancement under U.S. Sentencing Guidelines

§ 3B1.1(a) and a three-point reduction for acceptance of responsibility under § 3E1.1, resulting

in a Guidelines range of 210 to 262 months of imprisonment (total offense level 37, criminal

history category I). The government did not object to the PSR. Cook objected to including

cocaine and methamphetamine in the drug amount calculation and to the role enhancement.

       At sentencing, the government stated that it was prepared to introduce evidence of

intercepted telephone calls of Cook discussing cocaine sales. Cook withdrew his objection to

including cocaine in the drug amount calculation. Ultimately, the court included cocaine in the

drug calculation but removed methamphetamine.

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No. 13-5264
United States v. Cook


          In support of the role enhancement, the government called two witnesses. Thereafter,

Cook also testified.     The court applied the enhancement, relying in part on Cook’s own

testimony.     Shortly thereafter, the government objected to any reduction for acceptance of

responsibility, arguing that Cook had not testified truthfully about relevant conduct. The district

court heard argument from both parties and denied the reduction. The government also argued

that a two-level enhancement for obstruction of justice was appropriate under U.S. Sentencing

Guidelines § 3C1.1 for providing materially false information to the court at sentencing. The

district court applied the enhancement.

          The court calculated the new Guidelines range as 360 months to life (total offense level

42, criminal history category I) and sentenced Cook to a low-end Guidelines sentence of

360 months. Despite the appeal-waiver provision in the plea agreement, Cook filed a timely

appeal.

                                                 II.

          On appeal, Cook argues that the government breached the plea agreement by opposing a

reduction for acceptance of responsibility. He also argues that the government breached the

agreement by violating the covenant of good faith and fair dealing by seeking an obstruction of

justice enhancement based on immaterial inconsistencies in testimony, and by urging the district

court to include cocaine in the drug amount calculation.

          “It is well settled that a defendant in a criminal case may waive his right to appeal his

sentence in a valid plea agreement.” United States v. Smith, 344 F.3d 479, 483 (6th Cir. 2003).

Ordinarily, we review de novo “the question of whether a defendant waived his right to appeal

his sentence in a valid plea agreement.” United States v. Keller, 665 F.3d 711, 715 (6th Cir.

2011) (internal quotation marks omitted). However, because it is undisputed that Cook failed to

                                                 -3-
No. 13-5264
United States v. Cook


preserve his breach-of-plea-agreement claims for appeal, we review for plain error. Puckett v.

United States, 556 U.S. 129, 134 (2009). Plain-error review involves four steps:

       First, there must be an error or defect—some sort of deviation from a legal rule—
       that has not been intentionally relinquished or abandoned, i.e., affirmatively
       waived, by the appellant. Second, the legal error must be clear or obvious, rather
       than subject to reasonable dispute. Third, the error must have affected the
       appellant’s substantial rights, which in the ordinary case means he must
       demonstrate that it affected the outcome of the district court proceedings. Fourth
       and finally, if the above three prongs are satisfied, the court of appeals has the
       discretion to remedy the error―discretion which ought to be exercised only if the
       error seriously affects the fairness, integrity or public reputation of judicial
       proceedings.

Id. at 135 (internal quotation marks, citations, and alterations omitted). “Meeting all four prongs

is difficult, as it should be.” Id. (internal quotation marks omitted).

       We use traditional contract principles in interpreting and enforcing plea agreements

because they are contractual in nature. United States v. Bowman, 634 F.3d 357, 360 (6th Cir.

2011). “But because plea agreements’ constitutional and supervisory implications raise concerns

over and above those present in the traditional contract context, in interpreting such agreements,

we ‘hold the government to a greater degree of responsibility than the defendant . . . for

imprecisions or ambiguities in the plea agreement.’” Id. (quoting United States v. Harris, 473

F.3d 222, 225 (6th Cir. 2006)). Ambiguities are therefore construed against the government,

especially because the government can take steps in drafting a plea agreement to avoid

imprecision. Id. “The determinative factor in interpreting a plea agreement is not the parties’

actual understanding of the terms of the agreement; instead, an agreement must be construed as a

reasonable person would interpret its words.” United States v. Moncivais, 492 F.3d 652, 663

(6th Cir. 2007).




                                                 -4-
No. 13-5264
United States v. Cook


                                                A.

       First, Cook argues that the government breached the plea agreement by opposing credit

for acceptance of responsibility because he was legally entitled to dispute the role enhancement

without denying responsibility. The government responds that the plea agreement allowed it to

oppose credit for acceptance of responsibility after Cook falsely testified at the sentencing

hearing regarding relevant conduct. According to the government, such false testimony is

antithetical to affirmatively accepting responsibility. We agree.

       In exchange for Cook’s guilty plea, the government agreed to

       recommend that [Cook] receive the full reduction for acceptance of responsibility
       under U.S. Sentencing Guidelines § 3E1.1, providing [Cook] commits no new
       criminal offenses and continues to demonstrate an affirmative acceptance of
       responsibility, including acknowledging guilt in open court to the facts as set out
       in the indictment.

The PSR recommended a reduction for acceptance of responsibility, to which the government

concurred. However, after Cook testified at the sentencing hearing, the government changed its

position:

       THE COURT: Does the government have any objection to the guideline
       calculations? I think you already told me you did not.

       [GOVERNMENT]: Only at this point I would object to the three-point reduction
       that’s in the guidelines for acceptance.

       THE COURT: The government is not making a two-level reduction for
       acceptance of responsibility; is that correct?

       [GOVERNMENT]: That’s correct.

       THE COURT: Do you want to be―is there anything further you want to say
       about the two-level reduction?

       [GOVERNMENT]: Judge, unfortunately, at this point I don’t think it’s
       appropriate that he should get a two-level reduction. And that’s I think the risk
       that he took by choosing to take the stand and being caught in some very

                                                -5-
No. 13-5264
United States v. Cook


        significant inconsistencies. His testimony has put him at odds with what the facts
        are in this case. He didn’t have to put himself in that position. He I think by
        taking the stand and saying what he did and taking the position he’s taken, he’s
        forfeited the right to any reduction for acceptance of responsibility because I think
        his position is antithetical to what acceptance means. So I really don’t think he
        deserves any reduction at all for acceptance of responsibility at this point.

After hearing from defense counsel, the district court denied any reduction for acceptance of

responsibility, stating:

        To accept responsibility, you have to tell the truth, and at the end of the day you
        also can’t frivolously deny relevant conduct. If a defendant comes forward and
        says, these are the facts, I admit those are the facts, but those facts do not justify a
        two or four-level enhancement because I had a particular role in the offense, there
        is no question about acceptance in my mind at that point because there is no
        dispute about the facts. Anyone has a right to make a legal argument, and a good
        legal argument may prevail based on the facts. That’s not what’s happened here.
        What’s happened here is the defendant has attacked the enhancement by way of a
        factual attack. He has not admitted the relevant conduct. In fact, from my view,
        he has frivolously denied the relevant conduct because he hasn’t told the truth
        about it, and he hasn’t told the truth about key elements of his role in the offense;
        what he did, who he recruited, what authority he had, how he operated. These are
        critical to decision making at sentencing. He hasn’t told the truth about those
        things.

        In assessing whether a defendant has demonstrated an acceptance of responsibility, a

court may consider whether the defendant falsely denied or frivolously contested relevant

conduct. Appropriate considerations include “truthfully admitting the conduct comprising the

offense(s) of conviction, and truthfully admitting or not falsely denying any additional relevant

conduct for which the defendant is accountable under § 1B1.3 (Relevant Conduct).” U.S.S.G.

§ 3E1.1 cmt. n.1(A) (2012). “Relevant conduct” includes “all acts and omissions committed,

aided, abetted, counseled, commanded, induced, procured, or willfully caused by the

defendant . . . that occurred during the commission of the offense of conviction, in preparation

for that offense, or in the course of attempting to avoid detection or responsibility for that

offense.” U.S.S.G. § 1B1.3(a)(1) (2012). Importantly,

                                                  -6-
No. 13-5264
United States v. Cook


       a defendant is not required to volunteer, or affirmatively admit, relevant conduct
       beyond the offense of conviction in order to obtain a reduction . . . . A defendant
       may remain silent in respect to relevant conduct beyond the offense of conviction
       without affecting his ability to obtain a reduction . . . . However, a defendant who
       falsely denies, or frivolously contests, relevant conduct that the court determines
       to be true has acted in a manner inconsistent with acceptance of responsibility.

Id. § 3E1.1 cmt. n.1(A) (emphasis added).

       Whether Cook falsely denied or frivolously contested relevant conduct requires us to

examine Cook’s testimony in light of the other evidence at sentencing. When Cook objected to

the role enhancement, the government called two witnesses. First, Shelby County Sheriff’s

Department DEA Task Force Agent George Stauffer testified that he had listened to wiretapped

telephone calls and had interviewed a confidential source and multiple co-defendants. Based on

his knowledge from his involvement in the investigation, he testified that Cook had obtained

tractor-trailers, recruited and coordinated drivers, organized drug sales, and selected customers.

       Second, Ethel Foster, Cook’s aunt and a co-defendant who had pled guilty, United

States v. Foster, 2:11-CR-20006-8 (W.D. Tenn.), testified that Cook had called her “out of the

blue” to ask if he could unload some “freight” at her house. Cook also asked if her husband,

Larry Foster, would help. She denied any involvement with marijuana prior to his call. She also

testified that she lent Cook $4,000 for diesel fuel after he promised to pay her back with double

the money. After she realized that Cook was not going to pay her back, she, Larry, and Cook

sold the remaining marijuana at her house to recoup the money.             She denied that Cook

specifically recruited her to sell marijuana, but her testimony supported that Cook had at least

recruited her and her husband to unload and store the marijuana.

       Cook also testified. Although he apologized to his family “for bringing them into this,”

he denied recruiting anyone into the conspiracy. (Sent. Tr., R. 872, ID 3025 (“I didn’t recruit


                                                -7-
No. 13-5264
United States v. Cook


anyone. Everybody came to me.”).) He also denied coordinating transportation or “booking any

freight.” (Id. at 3022, 3039 (“I didn’t get him to ship loads. We shipped loads together.”).) He

portrayed himself as a middle man or “go-between.” (See, e.g., id. at 3022, 3023 (“I just was

getting $5,000 off the top of it because I was stuck in the middle. I knew everyone.”), 3025,

3027.) Regarding Foster’s testimony, Cook directly contradicted her characterization of the

$4,000 as a loan for fuel. He testified, “[s]he never loaned me $4,000. She gave me $4,000

toward the marijuana that she was purchasing. . . . She was purchasing it to resell it. She called

me. She said they wanted some marijuana, so I got them some marijuana.” He explained, “[t]he

$4,000 just went toward her bill because she owed that money to Carlos. It was Carlos’ weed. I

basically just stood for her that she was going to be good for it, but then at the end of the day I

end[ed] up owing everybody for the stuff that they took.” On cross examination, the government

confronted Cook with evidence from an intercepted call in which Cook told someone that, “I

went and I borrowed like a G [$1,000] from my aunt.” Cook did not contest the accuracy of the

evidence, but nonetheless testified that he never borrowed money from his aunt.

       Evaluating the totality of the circumstances, the district court concluded that the

government had satisfied its burden of proving that Cook had been a leader or organizer. The

district court made the following findings of fact with respect to the role enhancement:

       [T]he important thing I think here is that Mr. Cook would tell individuals where
       to go and what to do. He would tell [co-defendant Vincent Berry] where to go in
       Jackson, Tennessee. Mr. Cook would tell [co-conspirator Fred Cole] to meet a
       driver and what to do. And Mr. Cook would make financial arrangements for
       these various individuals. . . . And the calls and the proof taken as a whole show
       Mr. Stephen Cook coordinating sales and discussing amounts and prices of
       transportation and customers.




                                                -8-
No. 13-5264
United States v. Cook


                                               ***

       And looking at the recruiting situation, based on the defendant’s own testimony, a
       fair inference is that he recruited [co-defendant Terrance Brooks] at a bar or strip
       joint in McAllen, Texas. Whether all the driver[s] were hired by the defendant, it
       is hard to say based on the proof, but he certainly recruited Mr. Brooks into the
       organization.

                                               ***

       [T]he fact that an individual may have participated in the past in drug trafficking
       does not mean one cannot be a recruiter for that individual into the organization of
       the conspiracy at hand, which is what happened here. So we have the defendant
       giving instructions about picking up and delivery, who to sell to and, in fact, how
       they handled sales. That’s not inconsistent with all of the defendant’s testimony.
       It’s consistent with some of his conclusions and some of his testimony, but it is
       clear enough that he had enough control over these drugs to, according to his
       testimony, leave bundles . . . where he wanted to. In other words, he had
       sufficient control of this and decision making authority, for example, on the fourth
       load that he testified about to send bundles to his nephew in St. Louis [and] to
       send three bundles to Jackson, Tennessee . . . and he left five bundles with the
       Fosters. It is apparent from his own testimony that he made all these decisions.

       Regarding Foster’s testimony, the court found that Cook called Foster after they had not

talked in months, announcing that he had some “freight” to unload and he wanted help unloading

it. The court credited Foster’s testimony that Foster had not previously been involved with

marijuana and Cook had borrowed money from her but never paid it back.

       With respect to Cook’s testimony, the court found that Cook was “not a candid witness.”

The court gave several examples illustrating Cook’s lack of credibility. It observed that his

“testimony was not consistent with what the telephone calls clearly demonstrate” and “[h]e never

denied that he said those things.” In other words, the court could not reconcile Cook’s self-

interested portrayal of his role as a mere transporter with the content of the intercepted calls. The

court also found that Cook’s testimony “was not consistent with testimony he’s given in this




                                                -9-
No. 13-5264
United States v. Cook


court on prior occasion.”1 In summary, the court found that Cook had “exercised decision

making authority,” “organize[d] . . . various marijuana runs,” had discretion “to dispose of

[marijuana] on his own authority,” “attempted to recruit and did recruit accomplices including

members of his own family,” and “helped to plan and organize the offenses” by arranging

transportation and choosing who would receive and who would store the marijuana.

       Based on the court’s factual findings, the government reasonably concluded that Cook,

through his testimony, falsely denied relevant conduct and therefore failed to “demonstrate an

affirmative acceptance of responsibility” under the terms of the plea agreement and U.S.

Sentencing Guidelines § 3E1.1. Therefore, the district court did not plainly err in failing to find

that the government had breached the plea agreement by opposing acceptance of responsibility.

       Cook’s arguments to the contrary are unavailing. As a preliminary matter, Cook argues

that the government lacks sole discretion to assess Cook’s acceptance of responsibility. Indeed,

under the terms of the plea agreement and our precedent, the government does not have sole

discretion to determine whether Cook has demonstrated an acceptance of responsibility. Our

court has long imposed a reasonable-person standard for interpreting the terms of a plea

agreement. See, e.g., Moncivais, 492 F.3d at 663 (citing United States v. Ykema, 887 F.2d 697,

699 (6th Cir. 1989)).     In other words, the government may only change its position on

acceptance of responsibility if a reasonable person would understand Cook to have failed to

accept responsibility. Even so, that the government lacks sole discretion is not dispositive. The

district court found that Cook had not accepted responsibility because he falsely denied relevant

conduct.


       1
          This appears to be a reference to Cook’s testimony during a bond hearing. The bond hearing
transcript was not filed in this case.
                                               -10-
No. 13-5264
United States v. Cook


        Cook also argues that Foster’s testimony regarding the $4,000 was false and contradicted

the government’s own “official” version of events. This is unpersuasive for several reasons.

First, the court’s denial of credit for acceptance of responsibility was premised on much more

than the inconsistency between Cook and Foster about the $4,000. Cook’s failure to accept

responsibility went to Cook’s denial of relevant conduct, including recruiting and attempting to

recruit drivers, organizing the transportation for “marijuana runs,” and having authority to

determine when and where to dispose of marijuana. Second, with respect to the $4,000, it is not

clear from the record that Foster’s testimony directly contradicts an “official” version of events.

The first time the court heard testimony about the $4,000 was at sentencing. The case agent did

not testify on the issue. It was solely a dispute between Cook and Foster. Cook now argues that

Foster’s testimony regarding the $4,000 was untruthful because the PSR and intercepted calls

confirm that Cook and Foster had discussed the sale of marijuana by telephone. However, the

PSR does not address the $4,000 issue.             Nor is the remaining PSR information entirely

inconsistent with Foster’s testimony.2 Moreover, even if Foster’s testimony is inconsistent with

the record evidence, Cook did not object at sentencing. Therefore, Cook must show that the

district court’s error was plain. Here, the government could have reasonably interpreted Cook’s


        2
           Cook argues that the government’s proffer at Foster’s plea hearing proves that Foster testified
untruthfully at Cook’s sentencing hearing. There, the government quoted from an April 13, 2010,
intercepted call from Foster to Cook. During the call, Foster indicates that she and her husband “went by
that place and talked to a guy.” They discussed the price Cook wanted, and Cook stated that Foster could
upcharge from $550 to $700 and keep the profit. However, given the limited record evidence on Foster’s
role in the conspiracy, this evidence does not establish that Foster was untruthful about the relevant facts
with respect to Cook’s role enhancement. At Cook’s sentencing, Foster did not testify as to the date of
the first call between her and Cook. The intercepted call quoted at Foster’s plea hearing suggests she had
talked to Cook at least once before, leaving open the possibility that Cook initially called her to unload
“freight,” not the other way around. Indeed, the PSR clearly states that there was another call earlier that
day, but does not indicate who placed the call. Ultimately, the intercepted call quoted in Cook’s reply
brief does not contradict that Cook called Foster and her husband to recruit them to unload and store
marijuana. And nothing in the call addresses the disputed $4,000.
                                                   -11-
No. 13-5264
United States v. Cook


testimony about the $4,000 as frivolously denying that he recruited Foster and her husband to

unload and store marijuana. (See, e.g., Sent. Tr., R. 872, ID 3017 (“She called me. She said they

wanted some marijuana, so I got them some marijuana.”).) At a minimum, the government’s

opposition to credit for acceptance of responsibility based on its perception that Cook denied

relevant conduct was at least “subject to reasonable dispute.” Puckett, 556 U.S. at 135. Thus,

any error was not plain.

       Finally, the cases cited by Cook are distinguishable. In United States v. Griffin, 510 F.3d

354, 358−60 (2d Cir. 2007), the Second Circuit held that the government had breached a plea

agreement by expressing concerns at sentencing that the defendant had not accepted

responsibility, despite that it agreed “not to oppose” a reduction for acceptance. However, the

plea agreement in that case was different and more favorable to the defendant. There, the

government had firmly agreed not to oppose a reduction but retained the right to “respond at

sentencing to any statements made by the defendant or on the defendant’s behalf that are

inconsistent with the information and evidence available to the government.” Id. at 358. The

court found that the government at sentencing went “well beyond the pale” of addressing factual

inconsistencies by offering a thorough legal analysis unsolicited by the court. Id. at 364−65. In

this case, by contrast, the plea agreement provides that the government’s obligation to

recommend credit for acceptance of responsibility is contingent upon Cook “demonstrat[ing] an

affirmative acceptance of responsibility.” Thus, when the government reasonably perceived

Cook as frivolously denying relevant conduct, it was no longer obligated to recommend a

reduction.

       Also distinguishable is our unpublished decision in United States v. Logan, 542 F. App’x

484 (6th Cir. 2013). In Logan, the government breached a plea agreement when it failed to

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No. 13-5264
United States v. Cook


“stand mute” on the issue of acceptance of responsibility by arguing that an enhancement for

obstruction of justice was appropriate and that, “therefore, a reduction for acceptance of

responsibility was not appropriate.” Id. at 490. Nonetheless, we held that the error did not affect

the defendant’s substantial rights because he could not establish that “but for the government’s

breach of the plea agreement, the district court would have concluded that [defendant’s case] was

an extraordinary case and granted him the acceptance of responsibility reduction, when it found

that an obstruction of justice enhancement was appropriate.” Id. at 491−92. Although the plea

agreement provision on acceptance of responsibility allowed the government to withdraw its

recommendation if it “subsequently learn[ed] of conduct” inconsistent with acceptance, id. at

489, that provision was not the basis of decision in Logan. In this case, by contrast, the provision

permitting the government to withdraw its recommendation is squarely before us. In accordance

with the plea agreement, the government did not withdraw its recommendation until it perceived

Cook at sentencing as falsely denying relevant conduct. Accordingly, Logan is distinguishable.

                                                B.

       Cook also argues that the government breached the plea agreement by violating the

implied covenant of good faith and fair dealing by (1) moving for an obstruction of justice

enhancement based on immaterial inconsistencies in testimony, and (2) including cocaine in the

drug calculation despite that the government did not seek to indict him for a cocaine offense.

       “Like all contracts, [a plea agreement] includes an implied obligation of good faith and

fair dealing.” United States v. Hawkins, 274 F.3d 420, 430−31 (6th Cir. 2001); see also United

States v. Murrey, 531 F. App’x 653, 660 (6th Cir. 2013) (collecting cases). “In determining

whether a party has breached the obligation or covenant of good faith and fair dealing, a court

must examine not only the express language of the parties’ contract, but also any course of

                                               -13-
No. 13-5264
United States v. Cook


performance or course of dealing.” 23 Williston on Contracts § 63:22 (4th ed.). Whether

particular conduct violates the covenant necessarily depends on the facts of the particular case.

Id. “[S]ince there is a presumption that all parties act in good faith, the burden of proving a

breach of the covenant of good faith and fair dealing is on the person asserting the absence of

good faith.” Id. A party acts in bad faith when, “although not soliciting false evidence, [it]

allows it to go uncorrected when it appears.” Napue v. Illinois, 360 U.S. 264, 269 (1959); see

also Stumpf v. Robinson, 722 F.3d 739, 749 (6th Cir. 2013).

       The U.S. Sentencing Guidelines provide a two-point enhancement for obstruction if:

       (1) the defendant willfully obstructed or impeded, or attempted to obstruct or
       impede, the administration of justice with respect to the investigation,
       prosecution, or sentencing of the instant offense of conviction, and (2) the
       obstructive conduct related to (A) the defendant’s offense of conviction and any
       relevant conduct; or (B) a closely related offense.

U.S.S.G. § 3C1.1 (2012). This includes “providing materially false information to a judge.” Id.

§ 3C1.1 cmt. n.4(F). Information is “material” when, if believed, it “would tend to influence or

affect the issue under determination.” Id. § 3C1.1 cmt. n.6. Except in extraordinary cases,

conduct resulting in an obstruction of justice enhancement ordinarily “indicates that the

defendant has not accepted responsibility for his criminal conduct.” Id. § 3E1.1 cmt. n.4.

       At sentencing, after the district court denied Cook a reduction, the government raised the

issue of obstruction. It stated:

       [GOVERNMENT]: Based upon the defendant’s testimony where the defendant
       provided false information to the Court, I would submit that the Court did make a
       finding that the defendant’s testimony regarding Ms. Foster was false, and of
       course that did impede the obstruction―or the sentencing in this matter.

       THE COURT: Well, it might be argued that it attempted to. I can’t say that.

       [GOVERNMENT]: That is included in the enhancement where it states that if,
       one, the defendant willfully obstructed or impeded or attempted to obstruct or

                                               -14-
No. 13-5264
United States v. Cook


       impede the administration of justice with respect to the investigation, prosecution
       or sentencing of the instant offense of conviction, we submit under Application
       Notes 4(f), providing materially false information to a judge would qualify,
       making it a base offense level 42.

       THE COURT: [Defense counsel]?

       [DEFENSE COUNSEL]: Your Honor, I think the testimony was clear, and I
       haven’t seen anything as it relates to the $4,000 that was borrowed. There is a
       thousand dollars if anything related to these people. I’m assuming that’s what the
       false statement is.

       THE COURT: The statement as I understand it, I’m not sure it’s limited to one
       statement, but the specific statement that I think was cited was that Ms. Foster
       took the stand and she testified that she was home alone, the defendant called her,
       the defendant came by, defendant ultimately left marijuana there, he testified five
       bundles . . . and she testified that the defendant needed money for diesel fuel, that
       she loaned him $4,000 for diesel fuel, that he promised to repay her, in fact,
       promised to double her money, she never got the payment. In fact, she was left
       with this marijuana which she used very poor judgment in attempting to sell or
       recover her money.

       The defendant’s testimony is directly opposite to hers. In fact, he testified under
       oath that she was a liar. He said that she didn’t lend him any money, that he left
       the marijuana there because she was buying it, that he was―that she paid him a
       thousand dollars or whatever, any payment that he received from her was as
       payment, down payment on the marijuana which she was buying from him and
       she never paid for. I concluded that she was telling the truth and he wasn’t based
       on the total context of the case as well as having heard the testimony of both of
       them and observed them in open court.

                                              ***

       THE COURT: He agreed that he made the statement [on tape about having
       borrowed $1,000 from his aunt], but he didn’t agree that it was accurate. In fact,
       he said that that was not a borrowing, he didn’t borrow any money from her, she
       gave him money in partial payment for marijuana that she was to sell. I didn’t get
       too far into this, but basically the man said his whole family were a bunch of
       thieves who were out to make the most money they could, and they were all
       wrong, and he was right, that he was the one who was approached by all these
       individuals and each one of them was responsible and he’s not responsible. That
       was essentially his testimony. That’s not testimony I credit. And this is a piece of
       that whole testimony.



                                               -15-
No. 13-5264
United States v. Cook


       But it is the clearest situation where there is an absolute contradiction in the
       testimony that I cannot reconcile without believing one and not the other because
       there isn’t middle ground on that testimony. And he made it perfectly clear there
       wasn’t a middle ground when he called his aunt a liar.

                                               ***

       And he’s in a perfect position to know exactly what happened because he was a
       party to the transaction. So I don’t know how I come back to that conclusion
       without also concluding that he was willful in attempting to obstruct or impede
       the administration of justice as to the sentencing in this case. And it’s the instant
       offense of conviction that’s at issue, and the obstructive conduct relates directly to
       the offense of conviction and relevant conduct. It’s conduct that’s part and parcel
       of what he was doing and what he denies he was doing. It’s not something that’s
       so vague to be―well, here’s my role or here was not my role. It’s a specific fact,
       and it’s not the only situation here, but it’s the most obvious where he I believe
       has set out to and has not succeeded but attempted to impede the administration of
       justice as stated in 3C1.1. Therefore my conclusion is the two-level enhancement
       is appropriate.

       Cook argues that the government violated the covenant of good faith and fair dealing by

moving for an obstruction of justice enhancement. In effect, Cook argues that the government

must have known that Foster’s testimony was false and failed to correct it. We disagree because

Cook has not established that the government pursued the obstruction enhancement in bad faith.

       First, Cook’s argument necessarily depends on his assumption that “Foster’s account

cannot be reconciled with the ‘official’ version” of events. As outlined above, given the limited

evidence in the record on the government’s theory of Foster’s role in the conspiracy, Foster’s

testimony is not inherently incompatible with the evidence in the case. In any event, it is not so

inherently irreconcilable that we must infer, over a presumption of good faith, that the

government should have known Foster’s testimony was false and that it breached the covenant

by failing to bring its falsity to the court’s attention. Second, the record is consistent with the

government’s position that it sought the enhancement, and the court applied it, for valid reasons,

including multiple inconsistencies in Cook’s testimony, not merely the $4,000 dispute. The

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United States v. Cook


court explained that Cook’s testimony about the $4,000 was one in a series of incredible

statements. The loan was merely the “most obvious” example. Cook has not satisfied his burden

of establishing that the government acted in bad faith.

       Cook’s final argument is that the government breached the covenant of good faith and

fair dealing by negotiating a plea on the marijuana charge but subsequently including cocaine in

the base offense level drug calculation. Cook summarizes his position as follows:

       [T]he government has a duty, under the implied covenant of good faith and fair
       dealing, to disclose any uncharged conduct involving a substantial quantity of an
       entirely different controlled substance which will expose the defendant to
       significantly more severe treatment under the Guidelines.

The government responds that Cook was on notice of cocaine sales as relevant conduct because

he received summaries of the intercepted calls during discovery. Cook’s argument fails under

plain error review.

       “With respect to [drug crimes], the defendant is accountable for all quantities of [drugs]

with which he was directly involved and, in the case of a jointly undertaken criminal activity, all

reasonably foreseeable quantities of [drugs] that were within the scope of the criminal activity

that he jointly undertook.” U.S.S.G. § 1B1.3 cmt. n.2 (2012). “Types and quantities of drugs not

specified in the count of conviction may be considered in determining the offense level.” Id.

§ 2D1.1 cmt. n.5 (cross-referencing § 1B1.3 on relevant conduct).

       Some courts have expressed disapproval of the practice of indicting “defendants on

relatively minor offenses and then seek[ing] enhanced sentences later by asserting that the

defendant has committed other more serious crimes for which . . . the defendant was not

prosecuted and has not been convicted.” United States v. Bacallao, 149 F.3d 717, 721 (7th Cir.

1998) (internal quotation marks omitted). Nonetheless, in this case, Cook has not met his burden


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No. 13-5264
United States v. Cook


of showing the government’s conduct was undertaken in bad faith. Cook argues that there was

“no reason why the government could not have disclosed, at the time of the negotiation of the

plea agreement, its intention to seek an enhanced sentence based on the uncharged quantity of

cocaine.” But even assuming that the government intended to include cocaine in the calculation

at the time of the plea negotiations―which Cook has not established―such circumstances do

not inherently amount to bad faith. And they do not amount to plain error.

       Cook has not satisfied his burden of showing that the government breached the plea

agreement. In light of the valid appeal-waiver provision in the plea agreement, dismissal is

warranted.

                                              III.

       For these reasons, we grant the government’s motion to dismiss.




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