                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        DEC 11 1997
                    UNITED STATES COURT OF APPEALS
                                                                   PATRICK FISHER
                                                                             Clerk
                                TENTH CIRCUIT



 UNITED STATES OF AMERICA,

             Plaintiff-Appellee,

 v.                                                    No. 96-5105

 DONALD COURTOIS,

             Defendant-Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE NORTHERN DISTRICT OF OKLAHOMA
                       (D.C. No. 95-CR-138-2-B)


Submitted on the briefs:

Michael G. Katz, Federal Public Defender, Jill M. Wichlens, Assistant Federal
Public Defender, Denver, Colorado, for Defendant-Appellant.

Stephen C. Lewis, United States Attorney, Allen J. Litchfield, Assistant United
States Attorney, Tulsa, Oklahoma, for Plaintiff-Appellee.



Before PORFILIO and LUCERO, Circuit Judges, and MARTEN, * District
Judge.




      *
             The Honorable J. Thomas Marten, District Judge, United States
District Court for the District of Kansas, sitting by designation.
LUCERO, Circuit Judge.



      We are required in this sentence appeal to decide whether the use of

language by the United States in a plea agreement stating that “the discretion [to

file a downward departure motion for substantial assistance] rests solely with the

government” requires that the government give defendant the opportunity to

provide substantial assistance. 1 Because we conclude that the specific language

of the agreement at issue did not place such an obligation on the government, we

affirm defendant’s sentence.

      Defendant-appellant Donald Courtois was arrested and charged with

possession of heroin with intent to distribute and conspiracy. Upon the

government’s motion, he was detained without bond. Defendant subsequently

agreed to plead guilty to the possession charge and to cooperate with the

government, pursuant to a plea agreement. This agreement obligated the

government to “make the nature and extent of [defendant’s] cooperation known”

to the trial court at sentencing, and contained the following provision:




      1
       After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case is therefore
ordered submitted without oral argument.

                                         -2-
      At this time, the defendant has been de-briefed by federal agents and
      is making a good faith effort to cooperate in the government’s
      continuing investigation. To insure defendant’s continuing
      cooperation, this plea agreement specifically leaves potentially
      available all sentencing possibilities contemplated by 18 U.S.C.
      § 3553(a), (b) and (e) and § 5K1.1 of the Sentencing Guidelines.
      However, the discretion and decision to file any motion under
      18 U.S.C. § 3553(e) (departure below the mandatory minimum
      sentence) or a motion pursuant to § 5K1.1 (downward departure for
      substantial assistance) rests solely with the government.

Attachment “A” to Appellant’s Opening Br.

      It is undisputed that defendant gave truthful information to the government,

which included identifying several potential buyers of the seized heroin. The

government stated at the sentencing hearing, however, that it was unable to

capitalize on the defendant’s cooperative efforts and eventually terminated the

investigation for the following reasons: (1) it could not utilize defendant’s

assistance due to the manner in which defendant intended to distribute the heroin;

(2) defendant was in custody without bond and therefore unable to complete any

prearranged deliveries; and (3) due to time pressures and a subsequent transfer to

Honduras, the Tulsa DEA agent was unable to interview the defendant and pursue

the investigation after defendant was transferred to a facility forty miles from

Tulsa for security reasons.

      At sentencing, the government recommended that defendant be given the

benefit of 18 U.S.C. § 3553(f), which permits the court to impose a sentence

of less than the ten-year statutory minimum if the defendant has truthfully

                                         -3-
provided all information and evidence he has concerning offenses that were part

of the same course of conduct, common scheme, or plan. The government also

recommended that defendant be sentenced to the minimum sentence in the range

required by the Sentencing Guidelines based on his cooperation. The government

did not, however, move for a downward departure pursuant to § 5K1.1 of the

Sentencing Guidelines, because defendant had not actually rendered substantial

assistance. The government acknowledged that this was due to circumstances

beyond the defendant’s control. Defendant made no claim at sentencing that

the plea agreement had been breached.

      On appeal, defendant argues that the government obligated itself to give

him the opportunity to render substantial assistance and that the government’s

failure to do so denied him the benefit of his bargain. See, e.g., United States v.

Laday, 56 F.3d 24, 26 (5th Cir. 1995); United States v. Ringling, 988 F.2d 504,

506 (4th Cir. 1993). Whether the government has breached a plea agreement is a

question of law which we review de novo. See United States v. Belt, 89 F.3d

710, 713 (10th Cir. 1996). 2

      Ordinarily, the court’s review of the government’s decision not to move for

a substantial assistance downward departure is limited to determining whether the


      2
              Because the failure to object to an alleged breach of a plea agreement
does not waive the issue, we may review defendant’s claim de novo rather than
for plain error. See Belt, 89 F.3d at 712-13.

                                          -4-
decision was animated by an unconstitutional motive or was not rationally related

to a legitimate government end. See Wade v. United States, 504 U.S. 181, 185-86

(1992). Even if a defendant undeniably renders substantial assistance, the

government retains discretion to decide whether to request a § 5K1.1 downward

departure. See id. at 185 (holding § 5K1.1 “gives the Government a power, not

a duty, to file a motion when a defendant has substantially assisted”).

      The government may bargain away this discretion, however, in a plea

agreement. See id. at 185; United States v. Price, 95 F.3d 364, 368 (5th Cir.

1996). We agree with the other circuits that have considered this issue and have

found that whether a plea agreement unequivocally obligates the government to

provide defendant with the opportunity to provide substantial assistance turns on

the specific language of the agreement. Compare Laday, 56 F.3d at 25 n.1, 26

(holding language providing government “will file” motion if defendant provides

substantial assistance obligates government to give defendant opportunity to do

so) with Price, 95 F.3d at 366, 368-69 (holding agreement committing decision to

move for downward departure to “sole discretion” of government does not

obligate government to give defendant opportunity to provide substantial

assistance); compare Ringling, 988 F.2d at 506 (holding government’s promise

that it “will make known at the time of sentencing the full nature and extent of

Defendant’s cooperation” obligates government to interview defendant so that it


                                         -5-
can comment on the value of his cooperation) (emphasis added) with United

States v. Lockhart, 58 F.3d 86, 88 (4th Cir. 1995) (holding that where plea

agreement grants government discretion to seek assistance and move for

downward departure, agreement is not breached by failure to provide defendant

with an opportunity to render assistance, unless this decision is motivated by

impermissible animus or is not rationally related to a legitimate government end).

      Here, the government promised Courtois that it would make his cooperation

known to the court, which it did. Based on defendant’s cooperation, the

government recommended both that he be exempt from the statutory ten-year

minimum sentence and that he be sentenced at the bottom of the range required

by the Sentencing Guidelines. The government did not, however, obligate itself

to move for a § 5K1.1 downward departure. The language of the agreement

merely left this possibility open, expressly leaving the decision to file such a

motion in the sole discretion of the government. The government decided to

terminate the drug investigation, rendering defendant’s cooperation unnecessary.

As defendant has not alleged that the government terminated its investigation for

impermissible or irrational reasons, he has alleged no ground for relief.

      The judgment is AFFIRMED.




                                          -6-
