                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                            January 9, 2007
                                    TENTH CIRCUIT                         Elisabeth A. Shumaker
                                                                              Clerk of Court

 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                           No. 05-3382
                                                   (D.C. No. 04-CR-40061-001-RDR)
 SHARRIFF TILGHMAN,                                            (Kansas)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT *


Before HARTZ, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and
McCONNELL, Circuit Judge.


       On June 16, 2004, Sharriff Tilghman (the defendant) was charged in a four-count

indictment filed in the United States District Court for the District of Kansas as follows:

Count 1, knowingly, and intentionally possessing, with an intent to distribute,

approximately 2.41 grams of crack cocaine, in violation of 21 U.S.C. § 841(a)(1); Count

2, knowingly and intentionally using a firearm in relation to a drug trafficking crime in

violation of 18 U.S.C. §924(c)(1)(A); Count 3, possessing a firearm after having

been previously convicted of several felonies, in violation of 18 U.S.C. §§ 922(g) and



       *
        This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
924(e)(l); and Count 4, as being a user of and addicted to cocaine and possessing a

firearm in violation of 18 U.S.C. §§ 922(g) and 924(e)(l). On August 31, 2004, the

defendant filed a motion to dismiss the indictment or, in the alternative, to suppress oral

statements made by him to the police, alleging that when he was arrested the police

agreed not to prosecute him in federal court if he “co-operated” in its ongoing

investigation of other individuals suspected of drug trafficking and that he fulfilled his

part of the agreement. Defendant argued that the police did not fulfill their part of the

agreement and, instead, referred the case to the United States Attorney, who obtained the

four-count indictment against him. The government filed a response to that motion. On

October 13, 2004, the district court, after hearing, denied defendant’s motion to dismiss

or suppress.

       On February 22, 2005, the defendant, pursuant to a plea agreement, entered a plea

of guilty to Count 1 of the indictment, and the government agreed, inter alia, to dismiss

the remaining counts at sentencing. In the plea agreement, defendant agreed, inter alia,

not to appeal any sentence unless it involved an upward departure from his guideline

range. The pre-sentence report set defendant’s total offense level at 29 and his criminal

history category at VI, resulting in a guideline range of imprisonment for 151 to 188

months.

       On August 29, 2005, the defendant filed a “Motion to Enforce Plea Agreement.”

In that motion, the defendant alleged as follows:




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              Mr. Tilghman entered into a plea agreement with the
              Assistant United States Attorney whereby he would plead
              guilty to Count 1 of the Indictment, possession with the intent
              to distribute 2.41 grams of cocaine base. In exchange for this
              plea, the government agreed to file a motion for downward
              departure, pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. §
              3553(e), if Mr. Tilghman provided substantial assistance.
              Although Mr. Tilghman has fulfilled his part of the plea
              agreement, the government has refused to file a motion for
              downward departure. This is bad faith on the part of the
              government. This Court should require the government to
              uphold its part of the plea agreement.


       The record indicates that as of the time of the plea agreement, the government was

engaged in an ongoing investigation of several murders and thought that the defendant

could possibly “cooperate” with the government in solving the murders. Hence, the

inclusion in the plea agreement of paragraph 5(e) which reads as follows:

              5. Government’s agreements
                                 ...

                     e. In its sole discretion, the government may
                     recommend that the defendant receive a reduction in
                     his sentence pursuant to U.S.S.G. § 5K1.1 and 18
                     U.S.C. § 3553(e). The parties agree that substantial
                     assistance has not yet been provided by the appellant.

       As indicated, the defendant’s position is that he did provide “substantial

assistance” and the government’s position is that he did not, and therefore the

government, acting pursuant to 5(e) of the plea agreement, did not have to file a motion

for downward departure. In any event, at the sentencing hearing, the district court, after

an evidentiary hearing wherein the defendant and two law enforcement officers testified,



                                            -3-
denied defendant’s Motion to Enforce Plea Agreement. The court then set defendant’s

total offense level at 29, and his criminal history category at VI, which, as indicated,

resulted in a guideline range of 151-188 months, and sentenced defendant to

imprisonment for 151 months. In accordance with the plea agreement, the government

then dismissed the remaining three counts of the indictment. Defendant thereafter filed a

timely notice of appeal.

       As above stated, on appeal defendant raises one issue, i.e., whether the district

court erred in denying his Motion to Enforce Plea Agreement, contending that the

government, under the described circumstance, breached paragraph 5(e) of the plea

agreement when it failed to move for a downward departure from the guideline range

applicable to defendant, i.e., imprisonment for 151 to 188 months, or imprisonment of not

more than 11 years. The government in its brief on appeal argues that it did not breach

paragraph 5(e) of the plea agreement and that, accordingly, under the plea agreement the

defendant had waived his right to appeal.

       United States v. Young, 2006 WL 3411450 (10th Cir.), an order and judgment filed

on November 28, 2006 (mandate issued on December 20, 2006), sheds light on the

present controversy. In that case we spoke as follows:

              But, we have not yet determined in this circuit whether a party
              has the right to pursue an alleged breach of a plea contract in
              the face of a waiver of appeal. We now join our sister circuits
              in holding that a defendant’s waiver of the right to appeal or
              collaterally attack his sentence does not preclude an appellate
              argument that the government breached the plea accord.
              Practically, this preserves the public policy constraints that

                                             -4-
              bear upon the enforcement of other kinds of contracts. To
              determine whether the government breached this plea
              agreement, we examine the nature of the government’s
              promise and evaluate the promise in light of Young’s
              reasonable understanding of the promise at the time the guilty
              plea was entered. “Principles of general contract law guide
              our analysis of the government’s obligations under the
              agreement. [United States v. Peterson, 225 F.3d 1167, 1171
              (10th Cir. 2000)]. Whether the conduct at issue violated the
              plea agreement is a question reviewed de novo. (Citations
              omitted.)

       In Young, we first determined that the government had not breached the plea

agreement there under consideration and then we granted the government’s request for

enforcement of the defendant’s agreement not to appeal the judgment and sentence of the

district court. It was in that setting in Young that we dismissed the defendant’s appeal.

       We elect to follow the teaching of Young in the instant case. Accordingly, from

the record before us, we conclude that the district court did not err in denying the

defendant’s request that the government be ordered to file a motion for downward

departure. Paragraph 5(e) of the plea agreement is quite clear to us. The record does not

indicate “bad faith” on the part of the government and only suggests, at best, a difference

in opinion as to whether the defendant “assisted” the government, and, if he did, whether

it amounted to “substantial assistance.” The government not having breached the plea

agreement, we grant the government’s request that defendant’s waiver of his right to

appeal be enforced and that the appeal be dismissed. United States v. Hahn, 359 F.3d

1315, 1318 (10th Cir. 2004).




                                            -5-
Appeal dismissed.


                          Entered for the Court


                          Robert H. McWilliams
                          Circuit Judge




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