                                                           [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT            FILED
                         ________________________ U.S. COURT OF APPEALS
                                                            ELEVENTH CIRCUIT
                               No. 05-11929                 FEBRUARY 22, 2006
                           Non-Argument Calendar             THOMAS K. KAHN
                                                                 CLERK
                         ________________________

                      D. C. Docket No. 02-00713-CR-5-1

UNITED STATES OF AMERICA,


                                                      Plaintiff-Appellee,

                                    versus

WILLIAM BRENDT STEELE,
a.k.a. "Slicky"

                                                      Defendant-Appellant.


                         ________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       _________________________

                              (February 22, 2006)

Before CARNES, PRYOR and KRAVITCH, Circuit Judges.

PER CURIAM:

     William Brendt Steele appeals his sentence for conspiracy to possess with
intent to distribute at least five kilograms of cocaine, in violation of 21 U.S.C. §

846, on the grounds that the government breached its plea agreement by refusing to

file a motion for downward departure for substantial assistance. Because we find

that the government did not breach the plea agreement, we affirm.

                                    I. Background

      Steele was named in a three-count indictment. The first count included the

cocaine charge, the second charged him with conspiracy to possess with intent to

distribute at least 1,000 kilograms of marijuana, in violation of § 846, and the third

count with attempt to possess with intent to distribute 100 kilograms of marijuana,

in violation of 21 U.S.C. § 841. Steele agreed to plead guilty to the first count in

exchange for the government’s agreement to seek dismissal of the remaining

counts of the indictment.

      Steele’s plea agreement included a limited waiver of appeal in which Steele

waived his right to appeal his sentence unless the court imposed an upward

departure or the government filed an appeal. The agreement also included a

provision in which the government agreed to consider filing a motion for a

downward departure based on substantial assistance. See U.S.S.G. § 5K1.1. This

provision provided, in pertinent part, that

      if cooperation is completed before sentencing and the Government
      determines that such cooperation qualifies as “substantial assistance”

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      pursuant to Title 18, United States Code, § 3553(e) and/or § 5K1.1 of
      the Sentencing Guidelines, the Government will consider whether to
      file a motion at sentencing recommending a downward departure from
      the applicable guidelines range. . . . [T]he defendant understands that
      the determination as to whether he has provided “substantial
      assistance” rests solely with the Government. . . . If the defendant fails
      to cooperate truthfully and completely . . . he will not be entitled to
      any consideration whatsoever pursuant to this paragraph.

      The record reveals that Steele provided the government with information

relating to other participants in the drug conspiracy. The government then

indicated that it would file a motion for a substantial assistance reduction.

Steele did not, however, provide the government with information relating to his

father’s involvement in the conspiracy. The government learned of Steele’s

father’s involvement from other people whom Steele named.

      Furthermore, the people named by Steele provided information that led the

government to believe that Steele had acted as a leader or organizer of the

conspiracy, for which he was subject to a two-level enhancement under the

guidelines. Steele challenged the enhancement, but the district court ultimately

ruled that evidence supported the government’s allegations relating to his role in

the conspiracy and enhanced his sentence. Moreover, in further investigating

Steele’s role in the conspiracy, the government uncovered additional information

relating to his father’s involvement. Based on Steele’s failure to provide complete

information, the government declined to file the substantial assistance motion.

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      After the government declined to file the motion, Steele moved for a

downward departure based on substantial assistance or, in the alternative, for

specific performance of the plea agreement. According to Steele, after initially

refusing to file the motion, the government notified him by letter that it would file

the motion if Steele agreed to waive any Blakely objections, withdraw his

challenge regarding his role in the conspiracy, and stipulate to the government’s

proffered facts. Thus Steele claimed that, although he had fully cooperated with

the government, the government refused to file the motion based on

unconstitutional motives, namely, (1) his refusal to waive any constitutional claim

he might be entitled to pursuant to Blakely v. Washington, 542 U.S. 296 (2004),

and (2) his challenge to the government’s claims regarding his role in the offense.

      The court held several hearings on the issue of substantial assistance and

considered the issue again at sentencing. In addition to accusing the government of

acting with an improper purpose in refusing to file a motion for downward

departure, Steele asserted that the government’s refusal served no purpose, as the

government did not plan to use Steele as a witness against his father. Steele further

accused the government of acting in bad faith. The government responded that

Steele had been reluctant to fully cooperate with them and that Steele had tried to

manipulate the situation by giving information to other agencies rather than to the



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DEA. The government confirmed that it did not intend to have Steele testify

against his father, but it explained that this decision did not negate Steele’s

obligation to provide complete and truthful information.

      The district court concluded that the government’s belief that Steele had not

been truthful was a valid reason to decline to exercise its discretion to file the

motion, even if the information withheld did not result in any harm to the

government. The district court, however, explicitly recognizing the discretion

accorded it by United States v. Booker, 543 U.S. 220 (2005), and in consideration

of Steele’s assistance, although limited, the seriousness of his offense, and his

rehabilitation efforts, imposed a sentence of 144 months’ imprisonment, a sentence

24 months below the low end of the guidelines range of 168 to 210 months.

                                     II. Discussion

Breach of Plea Agreement

      Steele first argues that the government breached the plea agreement by

refusing to file a substantial assistance motion as promised. He asserts that

“substantial assistance” means providing the government with useful information.

Steele further argues that the family privilege is constitutionally protected and that

the government could not legitimately refuse to submit the motion because Steele

did not inculpate his father. In support of this argument, Steele cites numerous



                                            5
civil cases involving autonomy in family decisions. He asserts that this privilege

prevents the government from either compelling him to disclose information about

his father’s offenses or from using his failure to disclose such information as a

basis for finding that he did not cooperate with authorities.

      Whether the government has breached a plea agreement is a question of law

that we review de novo. United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir.

1998). When a defendant raises an argument for the first time on appeal, this court

reviews the argument for plain error. Id.

      Pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1, the government has “a

power, not a duty, to file a motion when a defendant has substantially assisted.”

Wade v. United States, 504 U.S. 181, 185 (1992). Generally, the government’s

refusal to file such a motion is not reviewable absent some showing of

unconstitutional motive. Id. Furthermore, the defendant must make a “substantial

showing” of an unconstitutional motive. Id. at 186. As for Steele’s argument that

we may review the government’s decision for bad faith, this court has held that we

may review the government’s decision solely for unconstitutional motive. United

States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000).

      Here, Steele has not established that the government had an unconstitutional

motive in refusing to file the substantial assistance motion. The record does not



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show that the government refused to file the motion as punishment for Steele’s

decision to challenge his sentencing calculations or any other questionable motive.

Steele’s argument relating to his asserted family privilege also fails. Steele cannot

prove plain error in this regard, as this court has rejected the argument that family

communications are privileged. See In re Grand Jury Subpoena of Santarelli, 740

F.2d 816, 817 (11th Cir. 1984). Moreover, the record supports the government’s

assertion that it refused to file the motion because Steele failed to provide complete

and truthful information. Accordingly, we hold that the government did not have

an unconstitutional motive in refusing to file the motion for downward departure

and that it therefore did not breach the plea agreement.

Exercise of District Court’s Discretion

      Steele next argues that the court erred in failing to recognize its discretion to

depart downward. We first consider whether the appeal waiver in Steele’s plea

agreement bars this challenge.

      This court reviews de novo the validity of a provision in a plea agreement

waiving a defendant’s right to appeal. United States v. Frye, 402 F.3d 1123, 1129

(11th Cir. 2005); United States v. Weaver, 275 F.3d 1320, 1333 n.21 (11th Cir.

2001). “An appeal-of-sentence waiver provision is enforceable if the waiver is

made knowingly and voluntarily.” Id. at 1333. “[A] waiver is not knowingly or



                                           7
voluntarily made if the district court fails to specifically question the defendant

concerning the waiver provision of the plea agreement during the Rule 11 colloquy

and the record indicates that the defendant did not otherwise understand the full

significance of the waiver.” United States v. Bushert, 997 F.2d 1343, 1351 (11th

Cir. 1993) (internal quotations and citations omitted).

      Here, the record reflects that the court specifically questioned Steele about

the waiver provision during the change-of-plea hearing. As we have already noted

that the government did not breach the plea agreement, and the waiver is valid, this

court lacks jurisdiction to review Steele’s sentence. And in any case, the record

reflects that the district court not only recognized its discretion to depart downward

pursuant to Booker, but actually exercised that discretion in imposing a sentence

that was 24 months below the applicable guidelines range.

For the foregoing reasons, the judgment of the district court is AFFIRMED.




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