                                                                       FILED
                                                                United States Court of
                UNITED STATES COURT OF APPEALS                      Appeals
                                                                    Tenth Circuit
                       FOR THE TENTH CIRCUIT
                     _________________________________
                                                                December 16, 2015

                                                               Elisabeth A. Shumaker
UNITED STATES OF AMERICA,                                          Clerk of Court

       Plaintiff–Appellee,

v.                                                 No. 14–2194
                                         (D.C. No. 1:10-CR-02734-JCH-3)
CASSLYN MAE WELCH,                              (D. New Mexico)

       Defendant–Appellant.
                  _________________________________

                        ORDER AND JUDGMENT *
                     _________________________________

Before BRISCOE, EBEL, and BACHARACH, Circuit Judges.
                 _________________________________


      Ms. Casslyn Mae Welch was indicted on eleven counts based on her

involvement in a carjacking and conspiracy that led to the killing of two

individuals. Facing a possible death sentence, Ms. Welch signed a plea

agreement, promising to cooperate with the government’s investigation and

prosecution of another suspect. Ms. Welch performed her obligations under

the plea agreement by September 2013.




*
      This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
     Ms. Welch alleges that roughly two weeks before her sentencing

hearing, the prosecutor orally promised to do three things:

     1.    move for a downward departure based on Ms. Welch’s
           substantial assistance,

     2.    “not [to] oppose” Ms. Welch’s request for a 20-year
           sentence, and

     3.    defer to the district court on any sentencing decisions.

The parties do not dispute that the government moved for a downward

departure. But according to Ms. Welch, the prosecutor breached the plea

agreement and the implied covenant of good faith and fair dealing by

     1.    agreeing to not oppose a 20-year sentence, but saying at
           the sentencing hearing that the government did “not
           concur” with Ms. Welch’s request for a 20-year sentence
           and

     2.    agreeing to defer any sentencing decisions to the district
           court, but saying at the sentencing hearing that a 40-year
           sentence was “sufficient but not greater than necessary”
           and that Ms. Welch had made a “decision . . . to kill” and
           lacked a “moral compass.”

The district court rejected both claims, holding that the government had

not breached the plea agreement or an alleged covenant of good faith and

fair dealing. We agree.

I.   The government did not breach any express promises in the plea
     agreement.

     We conclude that the government did not breach any express

promises in the plea agreement. In our view, the government complied with



                                     2
all of its written promises, and the alleged oral promises were

unenforceable.

     A.    We apply principles of contract law.

     We engage in de novo review of claims that the government breached

a plea agreement. See United States v. Burke, 633 F.3d 984, 994 (10th Cir.

2011). In applying this standard, we consider whether Ms. Welch proved a

breach through a preponderance of the evidence. Sternberg v. Sec’y, Dep’t

of Health & Human Servs., 299 F.3d 1201, 1206 (10th Cir. 2002).

     To determine whether Ms. Welch satisfied her burden, we conduct a

two-part inquiry, examining

     1.    the nature of the government’s promise and

     2.    Ms. Welch’s reasonable understanding of the promise at the
           time of her guilty plea.

Burke, 633 F.3d at 994. We interpret the plea agreement based on

principles of contract law, looking to “the express language in the

agreement.” United States v. Cudjoe, 534 F.3d 1349, 1353 (10th Cir. 2008)

(quoting United States v. Rodriguez-Rivera, 518 F.3d 1208, 1212-13 (10th

Cir. 2008)). But any ambiguities are interpreted against the government as

the drafter of the agreement. See United States v. VanDam, 493 F.3d 1194,

1199 (10th Cir. 2007).




                                     3
      B.      The government complied with its written promises.

      In the written plea agreement and addendum, the government

promised to

      1.      move to reduce Ms. Welch’s base-offense level by three
              levels under § 3E1.1 of the sentencing guidelines,

      2.      move to dismiss two specified counts against Ms. Welch
              if she continued to accept responsibility for her conduct,

      3.      refrain from further charges against Ms. Welch for
              conduct underlying the indictment, and

      4.      consider moving for a downward departure under § 5K1.1
              of the sentencing guidelines.

R. vol. I, at 111-12, 115; R. vol. II, at 2-3.

      The parties do not dispute that the government

      1.      moved for a three-level reduction in Ms. Welch’s offense
              level,

      2.      moved to dismiss the specified charges against Ms.
              Welch,

      3.      did not bring further charges against Ms. Welch, and

      4.      moved for a downward departure.

See R. vol. I, at 121-22; R. vol. II, at 63-72; Oral Arg. at 11:15-12:00. The

government’s motion for a downward departure proved successful: the

district court sentenced Ms. Welch far below the floor of the guideline

range. See R. vol. I, at 209 (reducing Ms. Welch’s sentence from 1,490

months to 480 months). Thus, the government did everything that it had

expressly promised in the written plea agreement and addendum.

                                        4
      C.    The alleged oral promises are unenforceable and did
            not relinquish the government’s discretion.

      Ms. Welch contends that the prosecutor failed to carry out

subsequent oral promises. We reject this contention. The alleged oral

promises are unenforceable because they (1) did not appear in the written

plea agreement or addendum and (2) lacked consideration from Ms. Welch.

      1.    The plea agreement foreclosed oral modification.

      We consider a plea agreement “completely integrated” if it contains a

“complete and exclusive statement of the terms of the agreement.” United

States v. Rockwell Int’l Corp., 124 F.3d 1194, 1199 (10th Cir. 1997)

(quoting Restatement (Second) of Contracts § 210(1) (1981)). The written

plea agreement and addendum contained both a complete expression of the

terms and express integration clauses. As a result, the plea agreement was

completely integrated, precluding any modification unless it was in writing

and signed by all parties. R. vol. I, at 116; R. vol. II, at 3. The integration

clauses could be avoided only through proof of “fraud, mistake, duress,” or

another ground sufficient for setting aside a contract. Blackledge v.

Allison, 431 U.S. 63, 75 n.6 (1977).

      Rather than invoke these grounds, Ms. Welch argues that the

government breached its alleged oral promises. But these promises were

never put in writing or signed by the parties. In the absence of a signed

writing, the alleged oral promises are unenforceable under the plea


                                       5
agreement because enforcement would create a conflict with the integration

clauses. See United States v. Cudjoe, 534 F.3d 1349, 1353 (10th Cir. 2008)

(explaining that we look to the “express language in the [plea]

agreement”).

     2.    The alleged oral promises are not enforceable as a new
           agreement.

     The alleged oral promises are also unenforceable as a new agreement.

If viewed as a new agreement, the alleged oral promises would have been

enforceable only if Ms. Welch had provided new consideration. See United

States v. Leach, 562 F.3d 930, 936-37 (8th Cir. 2009) (explaining that the

government’s alleged oral promises, which were made after the defendant

had pleaded guilty, could not serve as “part of the [defendant’s]

inducement or consideration underlying the guilty plea”); In re Sealed

Case, 686 F.3d 799, 802-03 (D.C. Cir. 2012) (noting that the government is

not bound by a promise when it “obtained nothing from [a] promise to

which it was not already entitled”). But Ms. Welch did not provide any

new consideration for the alleged oral promises.

     After the parties signed the written plea agreement, Ms. Welch did

not promise to do anything that she was not already obligated to do. In

fact, when the government allegedly made the oral promises, Ms. Welch

had completed her performance under the written plea agreement more than

seven months earlier. Thus, the prosecutor’s alleged oral promises lacked


                                     6
consideration from Ms. Welch. Without consideration from Ms. Welch, the

alleged oral promises would be unenforceable as a new agreement.

     The result might be different if the government had induced Ms.

Welch with the promise of a 20-year sentence and Ms. Welch reciprocated

by supplying the government with additional help. For example, if the

government had orally promised to support Ms. Welch’s request for a 20-

year sentence and that promise led Ms. Welch to cooperate with another

investigation, the oral promise might have been enforceable. See, e.g.,

Gibson v. Arnold, 288 F.3d 1242, 1245 (10th Cir. 2002) (explaining that a

promisee’s “detrimental reliance” on an oral promise may estop the

promisor from claiming the oral promise was not enforceable).

     But that was not the case here. The government allegedly promised

not to oppose a 20-year sentence after Ms. Welch had completed her

performance. Thus, the government’s alleged oral promises could not have

induced Ms. Welch’s performance. In these circumstances, the alleged oral

promises could not be enforced as a separate agreement.

     3.    The alleged oral statements did not relinquish the
           government’s discretion.

     Ms. Welch contends that the written agreement “left open” the

government’s eventual position on sentencing. Based on this open term in

the written agreement, she argues, the government initially retained

discretion on what to say at the sentencing hearing. But Ms. Welch argues


                                     7
that the prosecutor then relinquished that discretion by orally agreeing (1)

not to oppose a 20-year sentence and (2) to defer sentencing decisions to

the district court.

      We disagree. About two weeks before the sentencing hearing, defense

counsel asked the prosecutors what position the government intended to

take at the sentencing hearing. The prosecutors allegedly promised to not

oppose a 20-year sentence and to defer to the district court’s sentencing

decisions. But these alleged promises would not have abrogated the

government’s discretion or “filled in” any open terms. The government

always retained its discretion, memorialized in the written agreement, on

what to say at the sentencing hearing. R. vol. I, at 112.

      Ms. Welch suggests that the prosecutors effectively relinquished that

discretion. This suggestion is invalid: relinquishment of discretion would

have constituted a modification of the written plea agreement, which would

have required a new, signed writing or a separate agreement with new

consideration from Ms. Welch. As discussed above, Ms. Welch did not

obtain a signed writing or provide new consideration for a new promise. As

a result, the alleged oral statements did not create an enforceable

obligation by “filling in” an open term.

      4.    Our precedents on plea agreements are distinguishable.

      Ms. Welch mistakenly relies on our decisions in United States v.

Brye, United States v. Hawley, and United States v. Mata-Vasquez. In Brye

                                      8
and Hawley, the government promised in a written plea agreement to not

oppose a defendant’s requested sentencing term. United States v. Brye, 146

F.3d 1207, 1212 (10th Cir. 1998); United States v. Hawley, 93 F.3d 682,

691 (10th Cir. 1996). The plea agreement in Brye also included the

government’s written promise to stipulate to a specified sentence. See

Brye, 146 F.3d at 1210 (promising to stipulate to a sentence of “no more

than [60] months”). In Mata-Vasquez, the parties agreed that an oral

agreement was equivalent to a written plea agreement; but there, the

parties had not signed a written agreement. United States v. Mata-Vasquez,

111 F. App’x 986, 990 (10th Cir. 2004).

     These decisions do not apply here because Ms. Welch’s written plea

agreement

           did not limit the government’s discretion to take certain
            positions at sentencing and

           specifically provided that additional terms were unenforceable
            unless made in writing and signed by all parties.

                                   * * * *

     In these circumstances, we decline to enforce the government’s

alleged oral promises. They are unenforceable under the written plea

agreement, lacked new consideration to constitute a new agreement, and

did not relinquish the government’s discretion.




                                      9
II.   Even if an implied covenant of good faith and fair dealing existed,
      it was not violated.

      Ms. Welch also claims that the government breached the implied

covenant of good faith and fair dealing. For the sake of argument, we can

assume without deciding that this covenant exists in plea agreements. But

even with this assumption, Ms. Welch’s claim would fail: the district court

found that there was not “any evidence of bad faith” (R. vol. II, at 82), and

we uphold that finding.

      Our review is limited, for we must decide only whether the district

court’s factual finding entailed clear error. United States v. Williams, 292

F.3d 681, 685 (10th Cir. 2002). To decide whether the district court

committed clear error, we consider whether the court’s finding lacks record

support or leaves us with a “definite and firm conviction” that the finding

was incorrect. Id.

      We apply this standard to the district court’s finding that “confusion

between the parties resulted from the semantics used by each side,” not bad

faith. R. vol. II, at 82. In making this finding, the district court

characterized the government’s statements at the sentencing hearing as “so

vague and lacking in substance that it carried no weight in the Court’s

decision.” Id. at 82 n.1. 1


1
      Ms. Welch argues that it does not matter whether the breach was
intentional or affected the sentence. We decline to address these arguments
because they do not affect our inquiry under the clear-error standard.
                                       10
       Ms. Welch disagrees, claiming that the prosecutor urged the district

court to apply a 40-year sentence by stating that a 40-year sentence was

“sufficient but not greater than necessary.” Appellant’s Opening Br. at 14,

26; R. vol. I, at 310. For the sake of argument, we can assume that Ms.

Welch is correct. But the prosecutor’s alleged support for a 40-year

sentence would not require the district court to find bad faith.

       The government had already fulfilled its promises in the written plea

agreement. At most, the prosecutor’s statement about a 40-year sentence

might have conflicted with the alleged oral promises. But those alleged

oral promises are unenforceable, and Ms. Welch did not rely on them. In

these circumstances, we uphold the district court’s factual finding that the

government had not acted in bad faith.

III.   Conclusion

       We affirm.


                                    Entered for the Court



                                    Robert E. Bacharach
                                    Circuit Judge




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