                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 98-4143
                                     ___________

United States of America,           *
                                    *
           Appellee,                *
                                    * Appeal from the United States
     v.                             * District Court for the
                                    * Western District of Arkansas.
Shannan Wallace, also known as      *
Shanan Wallace,                     * [UNPUBLISHED]
                                    *
           Appellant.               *
                               ___________

                            Submitted:   December 30, 1999
                                Filed:   January 24, 2000
                                    ___________

Before HANSEN, FAGG, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
                           ___________

PER CURIAM.

       Shannan Wallace pleaded guilty to possessing methamphetamine with intent to
distribute, in violation of 21 U.S.C. § 841(a)(1). In the plea agreement, the government
agreed not to object to a motion by Wallace for safety-valve relief under 18 U.S.C.
§ 3553(f) “should the court determine that defendant so qualifies under said statute.”
Notwithstanding this provision, the government reserved the right to bring to the court’s
attention all relevant information regarding Wallace’s background, character, and
conduct; to make all facts known to the probation office and to the court; and to contest
any finding of fact. The presentence report indicated that Wallace appeared to meet
the criteria for safety-valve relief, and the government objected on the basis that
Wallace had possessed a firearm in connection with the offense.

       At sentencing, the district court1 interpreted the plea agreement to prevent the
government from advocating against the application of safety-valve relief, but to allow
the government to make any relevant facts and legal authority known to the court, and
Wallace agreed with this interpretation. After hearing testimony that Wallace had
trafficked drugs from her residence, and that a firearm was found in close proximity to
drugs and drug paraphernalia at her residence, the court found Wallace ineligible for
safety-valve relief, and sentenced her to the statutory minimum term of 120 months
imprisonment and 5 years supervised release.

       On appeal, Wallace argues that the district court erred in allowing the
government to effectively breach the plea agreement by presenting evidence at
sentencing which amounted to an objection to safety-valve relief. Having reviewed the
plea agreement de novo, see United States v. Wilkerson, 179 F.3d 1083, 1085 (8th Cir.
1999), we disagree. The plea agreement expressly conditioned the government’s duty
not to object to safety-valve relief upon the court determining that Wallace was in fact
eligible for safety-valve relief. Compare United States v. Mahique, 150 F.3d 1330,
1331-32 (11th Cir. 1998) (per curiam) (government agreed not to oppose defendant’s
request for safety-valve relief “if he is eligible, and the Court makes appropriate
findings regarding the criteria”; no breach where government argued that defendant did
not meet criteria and was thus ineligible for relief, because government’s promise not
to oppose defendant’s request was expressly conditioned on court finding that
defendant met criteria and was eligible), cert. denied, 119 S. Ct. 843 (1999), with
United States v. Mitchell, 136 F.3d 1192, 1193-94 (8th Cir. 1998) (government agreed
to file U.S.S.G. § 5K1.1 motion “recommending a downward departure of up to 50%


      1
        The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
                                          -2-
based on [defendant’s] cooperation”; agreement breached where government filed
motion but made no departure recommendation, because plain language of promise did
not condition recommendation on court first granting motion). The agreement also
expressly reserved to the government the right to make all facts known to the probation
office and to the court, and to contest any finding of fact. See United States v.
Tournier, 171 F.3d 645, 647-48 (8th Cir. 1999) (safety valve criteria are findings of
fact).

        Under these circumstances, the government did not breach the plea agreement
by demonstrating to the probation office and to the court that Wallace had possessed
a firearm in connection with the offense. Cf. United States v. McKnight, 186 F.3d 867,
869 (8th Cir. 1999) (per curiam) (no breach of plea agreement where government
promised to make substantial-assistance downward-departure motion, and did so, but
disclosed to district court information regarding defendant’s conduct which led court
to deny motion).

      Accordingly, we affirm the judgment of the district court.

      A true copy.

             Attest:

                     CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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