                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit
                   UNITED STATES CO URT O F APPEALS
                                                                       May 31, 2007
                                TENTH CIRCUIT                       Elisabeth A. Shumaker
                                                                        Clerk of Court

 U N ITED STA TES O F A M ER ICA,
              Plaintiff-Appellee,
                                                        No. 05-3419
 v.                                             (D.C. No. 01-CR-10143-M LB)
                                                          (D . Kan.)
 JOH N D OE, *
              Defendant-Appellant.



                                      OR DER


Before KELLY, M cKA Y, and LUCERO, Circuit Judges.




      Appellant pled guilty to misprision of a felony. His plea agreement with

the government contained a waiver of appellate rights. The plea agreement also

contained a section regarding substantial assistance as well as an acknowledgment

that the sentence w ould be determined solely by the court. Although the court

accepted the guilty plea, it deferred its ruling on the plea agreement pursuant to

Fed. R. Crim. P. 11 and U.S.S.G. § 6B1.1.

      The government filed a U.S.S.G. § 5K1.1 motion requesting that Appellant

be sentenced to time served because he had given substantial assistance to the



      *
       W e hereby grant Appellant’s pending and unopposed motion to conceal
Appellant’s identity, and we therefore refer to Appellant as either “John Doe” or
simply “A ppellant.”
government and because the government believed he w ould be useful in future

investigations. However, the district court denied the motion and chastised the

government for believing Appellant would cooperate in the future. The district

court told the government that Appellant “isn’t any more going to cooperate w ith

you than the man in the moon,” but, in the unlikely event continued cooperation

did occur, the government could “come back in a year under Rule 35 and present

to [the court] something that he has cooperated on.” In denying the motion, the

court made no mention of the assistance already provided by Appellant, which the

DEA agent testifying for the government characterized as “substantial.” After the

court denied the 5K1.1 motion, the government and Appellant both requested a

sentence at the low end of the guideline range. The district court, however,

sentenced Appellant to the high end of the range.

      Having deferred ruling on the plea agreement at the plea hearing, the

district court failed to accept or reject the agreement at sentencing. The

government’s argument appears to be that because the district court did not

explicitly reject the plea agreement, the court therefore must have implicitly

accepted it. Appellant in turn argues that the district court’s denial of the

government’s 5K1.1 motion constituted an implicit rejection of the plea

agreement because substantial assistance was an express part of the agreement.

      W e find the record ambiguous as to whether the court intended to accept or

reject the agreement. At the end of the sentencing hearing, the court told

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Appellant, “I think you waived your right to appeal in the plea agreement, but I’m

still required to advise you that you have a right to appeal. It won’t do you any

good, but you can appeal.” W e are unable to determine why the court first stated

that Appellant had waived his right to appeal and then advised him that he had a

right to appeal. W e also note that, although the court had discretion to reject the

government’s 5K1.1 motion, its decision to reject such a major benefit codified in

the plea agreement causes us to wonder whether it also intended to reject the

agreement. The court’s incredulity regarding Appellant’s willingness to give

future cooperation and its suggestion that the government bring a 35(b) motion if

he did cooperate 1 strongly suggest that the court did not believe Appellant would

follow the terms of the agreement. Rather than merely rejecting the parties’

sentencing recommendation, the court appears to have rejected the terms of the

plea agreement.

      In United States v. Belmonte-M artin, 127 Fed. App’x. 719 (5th Cir. 2005)




      1
        W e note that several of our sister circuits have held that a sentencing
judge may not consider the possibility of future 35(b) relief in deciding on
downward departure on a 5K1.1 motion. See, e.g., United States v. Drown, 942
F.2d 55, 59 (1st Cir. 1991) (“[T]he prospect of Rule 35(b) relief in the future
cannot be allowed to alter or influence the decisions of the prosecution, or the
deliberations of the court, at sentencing.”); United States v. Barnette, 427 F.3d
259, 262 (4th Cir. 2005) (quoting Drown, 992 F.2d at 59); United States v.
Bureau, 52 F.3d 584, 595 (6th Cir. 1995) (“[T]he sentencing judge has an
obligation to respond to a § 5K1.1 motion and to then state the grounds for action
at sentencing without regard to future events.”). Because we do not reach the
merits of the appeal in this order, w e do not address this issue here.

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(unpublished), the government argued that the defendant’s appeal should be

dismissed because the plea agreement contained an appellate w aiver. However,

the Fifth Circuit held that because the district court had stated that there was no

plea agreement, it was “unclear from the record w hether the district court

intended to accept or reject the agreement at sentencing.” Id. at 720. Thus, the

court partially remanded the matter to the district court for the purpose of

clarifying whether the plea agreement had been accepted or rejected.

      W e believe the Fifth Circuit’s approach is a sensible solution to the

problem . 2 If the district court rejected the terms of the plea agreement,

Appellant’s appeal rights are not curtailed. Accordingly, we must delay

addressing the merits of the appeal until we know whether the court intended to

reject or accept the agreement. W e therefore remand the case for the limited

purpose of clarifying the record as to whether the district court accepted or



      2
        W e note that the Fourth and Sixth Circuits have stated that, when the
record is ambiguous regarding whether the district court accepted, rejected, or
deferred ruling on a plea agreement at the plea hearing, the ambiguity is treated as
tacit acceptance by the court. See United States v. George, 898 F.2d 148 (table),
1990 W L 27208 (4th Cir. 1990) (unpublished); United States v. Skidmore, 998
F.2d 372 (6th Cir. 1993). However, that is a different situation from the instant
case, in which the court explicitly stated at the plea hearing that it would defer
ruling on the plea agreement and then failed to revisit the decision. Additionally,
each of those cases arose when the district court decided to impose a sentence that
did not conform to the terms of the plea agreement. The appellate courts then
ruled that the ambiguity in the record would be construed against the district
court, and thus that the court would be treated as having accepted the agreement.
Due to the different circumstances involved in those cases, we believe the Fifth
Circuit’s approach is more appropriate in the instant situation.

                                          -4-
rejected the plea agreement at sentencing.

                                              Entered for the Court



                                              M onroe G. M cKay
                                              Circuit Judge




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