               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 07a0265n.06
                           Filed: April 10, 2007

                                          No. 06-1154

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                       )
                                                )
       Plaintiff-Appellee,                      )
                                                )
v.                                              )    ON APPEAL FROM THE UNITED
                                                )    STATES DISTRICT COURT FOR THE
RONALD CORNELIOUS HEMPHILL,                     )    WESTERN DISTRICT OF MICHIGAN
                                                )
       Defendant-Appellant.                     )




       Before: ROGERS and GRIFFIN, Circuit Judges; and RUSSELL, District Judge.*
       PER CURIAM. Ronald Cornelious Hemphill pleaded guilty to possessing with intent to

distribute and distributing cocaine base. In the plea agreement, Hemphill promised to provide

assistance to law enforcement, and, in return, the Government promised to evaluate such assistance

in good faith in determining whether to recommend an offense-level reduction based on substantial

assistance under U.S.S.G. § 5K1.1. Because the Government did not determine whether Hemphill

provided substantial assistance and instead merely refused to file a § 5K1.1 motion, we reverse

Hemphill’s sentence and remand for resentencing.


                                          Background



       *
       The Honorable Thomas B. Russell, United States District Judge for the Western District of
Kentucky, sitting by designation.
No. 06-1154
United States v. Hemphill

       In January and February of 2005, Hemphill sold powder and crack cocaine to two individuals,

a confidential informant and an officer of the Michigan State Police. On March 17, 2005, a grand

jury returned an indictment against Hemphill, charging him with possession with intent to distribute

and distribution of more than five grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) &

(b)(1)(B)(iii) (Count One) and possession with intent to distribute and distribution of more than fifty

grams of cocaine base in violation of 21 U.S.C. § 841(a)(1) & (b)(1)(A)(iii) (Count Two).


       On August 9, 2005, Hemphill pleaded guilty to Count Two of the indictment pursuant to a

written plea agreement. In the plea agreement, Hemphill agreed to plead guilty to Count Two of the

indictment and agreed “to fully cooperate with the Drug Enforcement Administration, the Michigan

State Police, the U.S. Attorney’s Office, and any other law enforcement agency in their investigation

of the changes contained in [the] indictment or any Superseding indictment as well as the

investigation of crimes over which they have actual or apparent jurisdiction.” JA 23 (Plea

Agreement ¶¶ 1,5). The plea agreement required Hemphill “to voluntarily come forward with any

and all information which [he] should reasonably know will assist in the investigation of other

criminal activity.” JA 24 (Plea Agreement ¶ 5). In exchange, the Government agreed to move to

dismiss Count One of the indictment and “to make a good faith evaluation of [Hemphill’s]

cooperation under this agreement in determining whether to file a motion for reduction of sentence

pursuant to U.S.S.G. 5K1.1 and/or Federal Rule of Criminal Procedure 35(b).” JA 25 (Plea

Agreement ¶ 6A,D). The plea agreement went on to state the following:




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No. 06-1154
United States v. Hemphill

       The Defendant fully understands that such a motion may be made pursuant to law if,
       and only if, the Defendant fully cooperates with the Government and materially and
       substantially assists the Government in the investigation or prosecution of others.
       The determination of whether the Defendant has provided substantial assistance to
       the United States, or to designated state or local law enforcement authorities, will be
       made in the sole discretion of the U.S. Attorney’s Office. The Defendant fully
       understands that this paragraph is not a promise by the Government to file such a
       motion, but, rather, a promise to use good faith in evaluating the Defendant’s
       assistance to the Government in the prosecution of others to determine whether a
       motion should be filed. . . .
JA 25 (Plea Agreement ¶ 6.D).


       On January 10, 2006, Hemphill was sentenced. At the sentencing hearing, the Government

told the court that Hemphill cooperated with law enforcement officers, but that the Government

would not file a § 5K1.1 motion for substantial assistance because officers did not take the time to

verify the information that Hemphill provided:


                I was just going over this morning the information the defendant had given
       to the law enforcement officers in the form of a proffer last May. And as I’m going
       over it, it’s very rich in detail about his past involvement. . . .
               I’m surprised that law enforcement didn’t do a lot more with the information
       that he gave, and I suspect it’s because it was given to local law enforcement officers.
       There were no DEA agents in Lansing at the time that would follow up on it, and the
       information dealt with drug trafficking in Chicago and some people that were caught
       in Nebraska. So there is no 5K motion, but I want the Court to know that defendant,
       I believe, was extremely candid . . . .
After disposing of an objection not relevant to this appeal, the district court sentenced Hemphill to

140 months of imprisonment—the bottom of the guideline range of 140 to 175 months.


                                            Discussion




                                                 -3-
No. 06-1154
United States v. Hemphill

        As an initial matter, this court may review whether the Government breached the plea

agreement notwithstanding the fact that Hemphill waived his right to appeal in that agreement. For

example, in United States v. Swanberg, 370 F.3d 622, 625-29 (6th Cir. 2004), this court permitted

a defendant to contend on appeal that the government breached a plea agreement notwithstanding

the fact that the defendant knowingly and voluntarily waived his right to appeal. Thus, the fact that

Hemphill waived his right to appeal is not an impediment to this court’s review of whether the

Government breached the plea agreement.


        Because Hemphill failed to object at his sentencing hearing to the Government’s purported

breach of the plea agreement, we review the issue of whether the Government breached the plea

agreement for plain error. See Swanberg, 370 F.3d at 627. Under plain error review, this court

reverses only if “(1) there is an error; (2) that is plain; (3) which affected the defendant’s substantial

rights; and (4) that seriously affected the fairness, integrity or public reputation of the judicial

proceedings.” Id. (internal quotations omitted). Where the government’s breach of a plea agreement

results in a defendant receiving a higher sentence than he otherwise would have had the government

not breached the agreement, the error affects the defendant’s substantial rights and seriously affects

the fairness, integrity, or public reputation of the proceedings. See id. at 628-29. This is true here

even though had the Government exercised discretion, it might not have filed a § 5K1.1 motion, and

even had the Government filed the motion the judge might not have followed the Government’s

recommendation. See United States v. Barnes, 278 F.3d 644, 648-49 (6th Cir. 2002). Thus, plain




                                                  -4-
No. 06-1154
United States v. Hemphill

error review in this case collapses into an inquiry of whether the Government plainly breached the

plea agreement.


        The Government breached its duty under the plea agreement to decide whether Hemphill’s

cooperation and assistance constituted “substantial assistance.” Even when the government retains

discretion in deciding whether a defendant provided substantial assistance, the government must

exercise that discretion and cannot simply decline to file a § 5K1.1 motion. In United States v.

Lukse, 286 F.3d 906, 909 (6th Cir. 2002), defendants provided information to the government that

led to the prosecution of individuals previously unknown to the government. The plea agreement

required the government to file a § 5K1.1 motion if, in the government’s sole discretion, the

defendants provided “substantial assistance in the investigation or prosecution” of others. Id. at 908.

After the government initially concluded that defendants had provided substantial assistance,

defendants were caught smoking marijuana in prison and the government decided not to file § 5K1.1

motions because defendants no longer would be credible witnesses in the trials of others. Id. at 911.

This court remanded for resentencing because the government “did not determine whether the

defendants satisfied their duties with respect to parts of the plea agreement,” i.e., the parts requiring

the government to file § 5K1.1 motions if the defendants provided assistance in the investigation of

suspects (not merely the prosecution). Id. at 912-13. Importantly, the court noted that even though

the government had “complete discretion” to determine whether defendants provided substantial

assistance, the government still “had to analyze and determine whether substantial assistance had

been rendered; they could not simply leave the question unanswered.” Id. at 912.


                                                  -5-
No. 06-1154
United States v. Hemphill

        The Government here had a similar obligation to evaluate Hemphill’s cooperation and

assistance and determine whether Hemphill provided substantial assistance. There is no indication

that the Government made such a determination, only that the Government declined to file a § 5K1.1

motion. Under Lukse, the government must conclude that the defendant did not offer substantial

assistance before declining to file a § 5K1.1 motion. 286 F.3d at 912; see also United States v.

Quach, 302 F.3d 1096, 1100, 1002-03 (9th Cir. 2002) (noting that the government “failed to make

the requisite determination of whether” the defendant provided substantial assistance where the

government failed to file a motion under § 5K1.1 because a co-defendant’s case was ongoing and

the government claimed that the defendant had therefore not completed his cooperation). Thus,

because the Government here failed to evaluate Hemphill’s cooperation and assistance and determine

that Hemphill did not provide substantial assistance, it breached the plea agreement’s requirement

that it exercise discretion.


                                           Conclusion


        For the foregoing reasons, we REVERSE Hemphill’s sentence and REMAND the case so

that the Government can evaluate in good faith the assistance that Hemphill provided, determine

whether that assistance was “substantial,” and decide whether to make a motion for an offense-level

reduction based on U.S.S.G. § 5K1.1.




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