                          In the
 United States Court of Appeals
             For the Seventh Circuit
                       ____________

Nos. 05-2127 & 05-2220
UNITED STATES OF AMERICA,
                                           Plaintiff-Appellee,
                              v.


MARVIN ARTLEY and JERRY MCCOY,
                                  Defendants-Appellants.
                       ____________
         Appeals from the United States District Court
            for the Western District of Wisconsin.
           No. 04 CR 181—John C. Shabaz, Judge.
                       ____________
    ARGUED OCTOBER 17, 2006—DECIDED JUNE 5, 2007
                   ____________


 Before EASTERBROOK, Chief Judge, and BAUER and
FLAUM, Circuit Judges.
  BAUER, Circuit Judge. Jerry McCoy and Marvin Artley
pleaded guilty to drug-related offenses in violation of
21 U.S.C. §§ 846 and 841(a)(1), respectively. The district
court sentenced McCoy to 328 months’ imprisonment and
imposed a fine of $50,000 and sentenced Artley to 125
months’ imprisonment. On appeal, the defendants raise
several challenges to their sentences, arguing that the
district court improperly based its drug-quantity calcula-
tion and sentencing enhancements on speculative and
unreliable evidence, that their sentences disproportion-
ately punish their relevant conduct, and that their sen-
2                                  Nos. 05-2127 & 05-2220

tences are unreasonable. McCoy also contends that the
government breached its plea agreement with him by
failing to move for a reduced sentence in light of his
cooperation and that the district court erred by fining
him $50,000. We affirm both sentences.


                     I. Background
  In early 2000, the Wisconsin Department of Justice, the
Dane County Narcotics and Gang Task Force, and the
Drug Enforcement Administration began conducting a
joint investigation of McCoy’s suspected drug-trafficking
operation. During the course of the investigation, agents
gathered information and collected evidence through
confidential informants, controlled buys of cocaine, witness
statements, financial records, surveillance, and searches.
One confidential informant (“CI”) reported to agents
that he/she had purchased one to two ounces of cocaine
from McCoy every two to three weeks between the fall of
2002 and March of 2004. The agents then used this CI to
conduct six controlled buys between April 2004 and
October 2004. McCoy participated in each of the buys,
selling 309.64 grams of cocaine to the CI. During four
of the controlled buys, Artley assisted McCoy in distribut-
ing 193.32 grams of cocaine.
  McCoy and Artley were arrested and, on October 28,
2004, charged in a seven-count indictment with conspiracy
to possess and/or distribute cocaine and distributing
cocaine. Both defendants pleaded guilty pursuant to
written plea agreements. McCoy pleaded guilty to one
conspiracy count; Artley pleaded guilty to one distribution
count.
  The probation officer prepared each defendant’s
Presentence Investigation Report (PSR), using the 2004
Sentencing Guidelines. The PSRs included the following
statements taken from the defendants’ drug associates:
Nos. 05-2127 & 05-2220                                  3

   ! Aaron McCarroll told agents that he had received
       three ounces of cocaine base from McCoy in the
       summer of 1998. McCarroll also told agents that
       between the summer of 1998 and the summer of
       2000, he had observed McCoy deliver a quarter
       ounce “8-ball” of cocaine to Damon Glen seven or
       eight times; two to six quarter ounce “8-balls” of
       cocaine to Maurice Cerro seven to ten times; an
       ounce of cocaine to Randall Springen approxi-
       mately seven times; and four ounces of cocaine to
       Adderrazzak Laiti twice.
   ! Courtney Westfall, who later married McCoy, told
       investigators that she had observed a pile of
       cocaine at McCoy’s office that she estimated to be
       ten inches by twelve inches by six inches located
       next to a box of small plastic bags and two bottles
       of vitamin B-12. Westfall identified Emanuel
       Whitfield, Antwon Berry, and Keith Maggitt as
       McCoy’s drug-trafficking associates.
   ! David Mitchell told agents that he had sold cocaine
       for McCoy and that, from the Fall of 1999 to
       January 2001, he had purchased approximately
       five kilograms of cocaine from McCoy. He also had
       observed nine ounces of cocaine at McCoy’s apart-
       ment and identified Whitfield, Berry, Maggitt, and
       McCarroll as McCoy’s drug-trafficking associates.
   ! Zandra Hagberg told agents that she had spent
       time at McCoy’s business and had helped him
       with his bookkeeping. She had learned that Mc-
       Coy’s hotdog business was a cover for his drug-
       trafficking business and estimated that McCoy
       sold one-quarter to one-half a kilogram of cocaine
       every week from his office in late 1999 and early
       2000. Hagberg also had observed McCoy cut raw
       cocaine, put the cocaine in bags, and distribute
       cocaine from his residence.
4                                Nos. 05-2127 & 05-2220

    ! Darryl Franklin told agents that, from December
       1999 to March 2000, he had purchased eight to
       ten kilograms of cocaine from Whitfield at McCoy’s
       office. He stated that McCoy was present during
       several of those transactions.
    ! Catherine Verriden told agents that she had
       purchased an “8-ball” of cocaine from McCoy and
       his associates every week or two between October
       2002 and May 2003. Verriden stated that she
       had purchased the cocaine at Artley’s Fish Hatch-
       ery Road residence.
    ! William McCoy told investigators that Jerry
       McCoy sold cocaine. On July 26, 2003, Madison
       police investigated a homicide of one Adrian
       Bowdry at Artley’s residence. Artley, Jerry McCoy,
       William McCoy, and Nicole Conteras were all
       present during the shooting. William McCoy told
       investigators that, prior to the shooting, he had
       observed his brother with approximately a half a
       kilogram of cocaine in Artley’s living room. Jerry
       McCoy told investigators that the half a kilogram
       of cocaine belonged to William McCoy. During the
       search of the residence, investigators recovered
       two firearms, nine millimeter cartridge casings,
       live ammunition, drug paraphernalia, small plastic
       bags, a scale, rubber gloves with cocaine residue,
       and Inositol. Investigators also recovered a cereal
       box outside of Artley’s apartment complex con-
       taining 38.6 ounces of cocaine.
    ! Alicia Smith told agents that she had met McCoy
       in 2001, and shortly thereafter, began buying
       cocaine from him that she would later resell in
       smaller quantities. Smith first bought an ounce
       from McCoy. For the next six months, she pur-
       chased a half ounce of cocaine from McCoy every
Nos. 05-2127 & 05-2220                                    5

        two weeks. She then started buying four-and-a-
        half ounces from McCoy every two weeks for two
        months. Smith also stated that, prior to the shoot-
        ing of Bowdry, she bought cocaine from McCoy at
        Artley’s residence five to eight times. She did not
        say how much cocaine she purchased during the
        transactions at Artley’s residence, but she did
        state that Artley was present during approxi-
        mately half of those transactions. Smith told
        agents that she obtained a kilogram of cocaine
        from McCoy seven to ten times from September
        2003 to December 2003. Smith also said that she
        had delivered cocaine for McCoy to Verriden,
        Whitfield, and Montrell Savage.
    ! Savage told investigators that McCoy was buying
        between one and two kilograms of cocaine a month
        and then cutting the cocaine to make three or
        four kilograms before reselling it.
    ! A second confidential informant told agents that,
        in April of 2004, he had received four ounces of
        cocaine base, a kilogram of cocaine, and two
        pounds of marijuana from McCoy.


  A. McCoy’s PSR and Sentencing Hearing
  McCoy’s PSR determined that he was responsible for
conspiring with Artley and others to possess and/or
distribute at least 15 kilograms but not more than 50
kilograms of cocaine. The PSR recommended applying a
two-level enhancement, pursuant to U.S.S.G. § 2D1.1(b)(1),
for possession of a dangerous weapon in a place where
drugs were present, and a four-level enhancement, pursu-
ant to U.S.S.G. § 3B1.1(a), for being an organizer or leader
of a criminal activity involving five or more participants.
McCoy filed a written objection to the PSR, challenging
6                                  Nos. 05-2127 & 05-2220

the inclusion of the uncharged drug amounts and the
leader/organizer enhancement. McCoy complained that
the hearsay statements taken from his former drug
associates and family members unfairly increased his
culpability from 309.64 grams of cocaine, which was the
amount seized during the controlled buys, to an uncharged,
collateral amount of between 15 and 50 kilograms of
cocaine.
  At sentencing, McCoy did not call a single witnesses to
dispute the statements contained in the PSR. In determin-
ing McCoy’s relevant conduct, the district court stated
that it had considered the 309.64 grams of cocaine seized
during the controlled buys, the 38.6 ounces of cocaine that
agents recovered outside of Artley’s apartment after the
shooting of Adrian Bowdry, and the cocaine packaging
that agents found in the trash at McCoy’s residence.
The district court also relied on statements from the PSR
made by Mitchell, Franklin, Hagberg, McCarroll, Smith,
Savage, Verriden, and the confidential informants in
calculating McCoy’s relevant conduct. The district court
concluded that a reasonable estimate of the cocaine
quantities distributed by McCoy fell well within the
range of at least 15 but not more than 50 kilograms of
cocaine.
  After determining McCoy’s relevant conduct, the dis-
trict court calculated McCoy’s advisory sentencing guide-
line range. The calculations started with a base offense
level of 34, according to § 2D1.1(c)(3), because the offense
involved at least 15 but less than 50 kilograms of cocaine.
The district court added two additional levels, finding
that McCoy was involved in a jointly undertaken criminal
activity with Artley and others in which firearms were
possessed. The district court also applied a four-level
enhancement to McCoy’s base level because it found that
he had acted as the leader of an extensive criminal
activity that involved five or more participants. After
Nos. 05-2127 & 05-2220                                        7

applying a three-level credit for acceptance of responsi-
bility, the district court calculated that McCoy’s total
offense level was 37. Based on an offense level of 37, and
a criminal history category of IV, the district court deter-
mined that the imprisonment range for McCoy was 292 to
360 months.1 The district court ordered McCoy to pay a
$50,000 fine and sentenced him to 328 months in prison
and six years of supervised release.


    B. Artley’s PSR, PSR Addendum, and Sentencing
       Hearing
  The PSR estimated that Artley’s relevant conduct
involved at least 500 grams but not more than two kilo-
grams of cocaine, which, under § 2D1.1(c)(7), resulted in an
advisory guideline base offense level of 26. After applying
a two-level enhancement (not challenged on appeal) for
possession of a loaded firearm in a place where drugs were
present and a three-level credit for acceptance of responsi-
bility, the PSR recommended that Artley’s offense level
total 25.
  Artley filed objections to the PSR, contending that the
drug-quantity estimate was speculative and in violation
of his due process rights. Specifically, Artley objected to
the PSR’s statement that he had worked with Jerry McCoy
for several years.2 Artley also objected to the PSR’s
reliance on statements made by William McCoy, Verriden,


1
  The imprisonment range is 295 to 365 months; however, the
range is limited by the 30-year statutory maximum imprison-
ment term.
2
  Artley argued that such a statement was speculative and
inconsistent with his incarceration from May 10, 2000 to May 14,
2002, his subsequent stay in a halfway house until mid-
August 2002, and his imprisonment from September 10, 2003
to February 6, 2004.
8                                 Nos. 05-2127 & 05-2220

and Smith. Artley argued that the inconsistencies in the
statements made by William McCoy and Jerry McCoy and
their efforts to blame each other for the drugs present at
Artley’s apartment the night of the shooting rendered
William McCoy’s statements unreliable. Artley next argued
that Verriden’s statements were insufficiently reliable
because of her assertion that she had contacted Artley to
buy cocaine at times Artley was in prison and her claim
that she began buying cocaine at Artley’s Fish Hatchery
Road apartment in October 2002 even though he had not
yet moved into that apartment. Finally, Artley argued that
Smith contradicted herself by stating that she had been to
Artley’s apartment for cocaine transactions five to eight
times, when she also told investigators that she had made
four four-and-a-half ounce purchases of cocaine from
McCoy.
  An addendum to the PSR responded to Artley’s objec-
tions, noting that it was reasonable to conclude that
Artley knew about the drugs being distributed from his
residence. Both William and Jerry McCoy stated that the
other was in possession of cocaine at Artley’s residence
the night Artley shot Bowdry. That same night, police
recovered cocaine outside of Artley’s apartment. William
McCoy, Verriden, and Smith all stated that Jerry McCoy
and Artley sold drugs together out of Artley’s residence
on Fish Hatchery Road. Artley admits that in November
2002 he was living at his Fish Hatchery Road apartment.
  Finally, the addendum explained that Smith’s state-
ments were not contradictory. Smith did not clarify the
amount of cocaine she had purchased during her transac-
tions at Artley’s residence. Her statement that she had
purchased four-and-a-half ounces of cocaine from McCoy
every two weeks for two months did not contradict her
statement that she also had been to Artley’s residence
five to eight times to purchase cocaine.
Nos. 05-2127 & 05-2220                                    9

  The district court disagreed with Artley’s objections
and adopted the portions of the PSR and PSR Addendum
that it found sufficiently reliable: the drugs seized during
the controlled buys; the statements of William McCoy,
Smith, and Verriden; and the kilogram of cocaine recov-
ered by the police outside of Artley’s apartment during
the homicide investigation. Based on this evidence, the
district court determined that Artley’s relevant conduct
involved at least 500 grams but less than two kilograms
of cocaine. Having accepted the PSR’s recommendations,
the district court first determined Artley’s sentencing
guidelines range to be 110 to 137 months’ imprisonment
and then sentenced him to 125 months’ imprisonment
and three years of supervised release.
 Each defendant filed a timely notice of appeal, and on
May 10, 2005, we consolidated their appeals.


                     II. Discussion
  A. Reliability of the Evidence Used in Sentencing
     Defendants
  McCoy and Artley first argue that the district court
erred by relying on speculative and unreliable hearsay
statements contained in the PSR in calculating the
amount of cocaine attributed to them as relevant conduct
for sentencing purposes. We review a district court’s
findings of relevant conduct, drug quantity, and role in
the offense for clear error. United States v. Ngatia, 477
F.3d 496, 500 (7th Cir. 2007). We will affirm the district
court’s decision unless, after considering all of the evi-
dence, we are left with a “definite and firm conviction that
a mistake has been committed.” United States v. Romero,
469 F.3d 1139, 1147 (7th Cir. 2006) (citing United States v.
Bennett, 461 F.3d 910, 912 (7th Cir. 2006).
10                                  Nos. 05-2127 & 05-2220

  Although “a defendant has a due process right to be
sentenced on the basis of accurate information . . . the
evidentiary standards that apply at sentencing are not
as stringent as those applicable in a criminal trial.” United
States v. Taylor, 72 F.3d 533, 543 (7th Cir. 1995) (citation
omitted). The government is required to prove the
amount of drugs attributable to a defendant by a prepon-
derance of the evidence. United States v. Porter, 23 F.3d
1274, 1277 (7th Cir. 1994). The sentencing guidelines
require judges to limit consideration to information that
has a “sufficient indicia of reliability to support its proba-
ble accuracy.” See U.S.S.G. § 6A1.3(a).
  A district court may rely on the PSR in ruling on factual
issues in the sentencing context as long as the PSR is
based upon sufficiently reliable information. Romero, 469
F.3d at 1147 (citing United States v. Willis, 300 F.3d 803,
807 (7th Cir. 2002). When the court relies on information
contained in the PSR at sentencing, it is the defendant’s
burden to show that the PSR is inaccurate or unreliable.
Id. (citing United States v. Salinas, 365 F.3d 582, 587 (7th
Cir. 2004)). “When a defendant has failed to produce
any evidence calling the report’s accuracy into question, a
district court may rely entirely on the PSR.” Taylor, 72
F.3d at 543.
  McCoy argues that several statements relied on by the
district court are presumptively unreliable because they
were given with government involvement, described past
events, and were not subject to adversarial testing.
Specifically, he argues that the district court should not
have relied on the statements taken from Franklin,
Hagberg, McCarroll, and Verriden because their state-
ments described drug activity that took place years before
they provided their statements. The volume and consis-
tency of these statements, however, refute his challenge
to their reliability. The statements relied on by the dis-
trict court are consistent and corroborated: they discuss
Nos. 05-2127 & 05-2220                                         11

the same locations where drugs were being sold, offer
similar amounts of drugs being distributed, and involve
the same people as participants in McCoy’s drug-traffick-
ing operation.3
  When addressing whether two or more offenses are part
of the same course of conduct, a district court must
examine whether the government has established a
similarity, regularity, and temporal proximity between the
uncharged acts and offense of conviction. See United States
v. Acosta, 85 F.3d 275, 281 (7th Cir. 1996). In this case, the
district court did not explain how these three factors
supported a finding that McCoy’s previous drug activity
was part of the same course of conduct charged in the
indictment. Nevertheless, any error was harmless. Though
the PSR suggests that McCoy’s drug dealing may have
occurred during two distinct time periods—1999 to early
2001 and late 2002 to 2004—the district court found
that the amount of drugs involved in the second period of
drug dealing, which was undoubtedly part of the same
course of conduct alleged in the indictment, well exceeded
the fifteen kilograms of cocaine necessary to place McCoy
in the requisite base offense level. Indeed, the PSR stated,
and the district court accepted, that McCoy sold seven to
ten kilograms of cocaine to Smith between September 2003
and December 2003; one to two kilograms of cocaine to a
confidential informant between the fall of 2002 and
March of 2004; and four ounces of crack (the equivalent of


3
  McCoy claims that he and Artley were the only members of the
conspiracy. He argues that the district court erred in finding
that he was the leader/organizer of a conspiracy involving five or
more participants. We disagree. The PSR statements adopted
by the district court confirm that at least five individuals—
Verriden, Whitfield, Savage, Smith, and Artley—sold drugs
for McCoy between late 2002 and 2004.
12                                Nos. 05-2127 & 05-2220

eleven kilograms of cocaine powder for Guidelines pur-
poses) to a second confidential informant in 2004.
  Artley argues that the district court did not resolve his
objections to the PSR prior to determining his relevant
conduct. We disagree. The addendum to the PSR ade-
quately addressed and clarified Artley’s objections to
the statements made by William McCoy, Verriden, and
Smith. Again, their statements are consistent and corrobo-
rating in that they all agree that Artley and McCoy sold
cocaine out of Artley’s residence on Fish Hatchery Road.
Like McCoy, Artley provided no evidence to challenge the
factual accuracy of his PSR; nor did he call any witnesses
to rebut any of the evidence offered against him.
  Artley also contends that the district court did not
inquire into the scope of his joint undertaking with McCoy,
the agreements they made, or the foreseeability of any
particular drug quantity in determining his relevant
conduct. In determining relevant conduct under the
guidelines, a defendant engaged in a jointly undertaken
criminal activity is liable for all reasonably foreseeable
acts performed in furtherance of the jointly undertaken
criminal act. See U.S.S.G. § 1B1.3 (2004). In drug dis-
tribution cases, courts are instructed to calculate guide-
line ranges based not only on the charged drug amounts
but also on the uncharged amounts “that were part of the
same course of conduct or common scheme or plan as the
offense of conviction.” United States v. Bullock, 454 F.3d
637, 641 (7th Cir. 2006).
  After determining which witness statements were
reliable, the district court found that Artley worked with
or for Jerry McCoy when he was not incarcerated; Artley’s
residence was used by Jerry McCoy and others to distrib-
ute cocaine; Artley observed a significant amount of
cocaine flow out of his residence in full view; and Artley
was a part of these sales. In reviewing these factual
Nos. 05-2127 & 05-2220                                         13

findings of the district court, we are not left with a
“definite and firm conviction that a mistake has been
made.” See Romero, 469 F.3d at 1147.
  Artley admitted that he was aware that McCoy used his
apartment to distribute drugs. The four controlled buys
demonstrated that Artley sold cocaine with McCoy. The
statements of William McCoy, Verriden, and Smith all
confirmed that McCoy and Artley sold drugs together
out of Artley’s apartment. Based upon the quantities of
cocaine that McCoy and Artley were distributing, it was
reasonably foreseeable that McCoy would have cocaine in
his possession in Artley’s residence the night of the
shooting.4 Also, based on William McCoy’s and Jerry
McCoy’s statements to the police following the shooting,
it is likely that the kilogram of cocaine recovered by
police outside of Artley’s apartment came from Artley’s
apartment. Considering only the 193.93 grams and one
kilogram of cocaine recovered by the police, Artley’s
relevant conduct is well within the district court’s find-
ing that his relevant conduct involved at least 500 grams
but less than 2 kilograms of cocaine. Thus, the district
court did not err in determining Artley’s relevant con-
duct or drug quantity.5


4
  Both William McCoy and Jerry McCoy confirmed that a large
amount of cocaine was present in Artley’s apartment on the
evening of July 26, 2003. They merely dispute its ownership.
Because the McCoy brothers corroborate its existence, it is rea-
sonable to conclude that Artley also knew about this cocaine.
5
  McCoy challenges his two-level weapons enhancement under
U.S.S.G. § 2D1.1(b) for the first time on appeal. “Section
1B1.3(a)(1)(B) makes clear that defendants can also be on the
hook for firearms possessed by their coconspirators so long as
such possession was reasonably foreseeable.” United States v.
Luster, 480 F.3d 551, 558 (7th Cir. 2007). The record established
                                                    (continued...)
14                                   Nos. 05-2127 & 05-2220

    B. Reasonableness of Sentences
  The defendants next contend that their respective
sentences are unreasonable. After United States v. Booker,
543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005), we
review criminal sentences for unreasonableness. Appel-
late courts are guided by the factors in 18 U.S.C. § 3553(a)
when deciding whether a particular sentence is unrea-
sonable. Booker, 125 S. Ct. at 766.
   While McCoy never asked the district court to consider
his cooperation with the government prior to his sentenc-
ing, he now argues that his sentence is unreasonable
because the district court failed to give him credit for
his “very significant” cooperation. He contends that even
if the government did not breach the plea agreement, the
court still should have considered his cooperation in
determining his sentence. This Court’s role is not to chose
between possible sentences, but rather to review the
reasonableness of the sentence imposed by the district
court. United States v. Lopez, 430 F.3d 854, 857 (7th Cir.
2005). Given that the district court considered and ade-
quately discussed the factors in § 3553(a) and explained
its reasoning for sentencing McCoy to the midpoint of
the sentencing range, McCoy’s sentence was not unrea-
sonable.



5
  (...continued)
that McCoy and Artley both used Artley’s residence to store and
distribute drugs. Artley admittedly possessed firearms at his
residence. It is probable that these firearms were intended to
protect McCoy and Artley and their drug-operation from would-
be thieves. In fact, Artley did just that when he shot Bowdry
on July 26, 2003. Because McCoy reasonably could have fore-
seen that Artley would possess firearms in his residence to
protect their drugs and money, the district court did not err
in applying the enhancement.
Nos. 05-2127 & 05-2220                                  15

  Artley argues that his sentence is unreasonable because
it punishes him for a larger drug quantity than the
evidence supports. He contends that the district court
may have erroneously included an additional kilogram of
cocaine when determining his guideline range. We dis-
agree. Had the district court erroneously included an extra
kilogram of cocaine in addition to the kilogram of cocaine
recovered by the police outside of Artley’s residence and
the 193 grams of cocaine from the controlled buys, the
district court could not have determined that Artley’s
relevant conduct involved less than two kilograms of
cocaine.
  Both defendants also contend that their sentences are
unreasonable because they amount to a “tail wagging the
dog” situation. Specifically, McCoy argues that his sen-
tence was based on the district court’s relevant conduct
determinations, which disproportionately increased his
guidelines range from 57 to 71 months to 292 to 360
months; Artley argues that his sentence unreasonably
punishes him for ten times the amount of cocaine in-
volved in his offense of conviction.
   Although we have admonished prosecutors repeatedly
“not to indict defendants on relatively minor offenses and
then seek enhancement sentences later by asserting
that the defendant has committed other more serious
crimes for which . . . the defendant was not prosecuted and
has not been convicted,” see United States v. Spiller, 261
F.3d 683, 691 (7th Cir. 2001); United States v. Bacallao,
149 F.3d 717, 721 (7th Cir. 1998); United States v. Duarte,
950 F.2d 1255, 1263 (7th Cir. 1991), we have stricken
sentences only where the government has failed to estab-
lish that the relevant conduct was part of the same course
of conduct or common scheme or plan as the conviction. See
Bacallao, 149 F.3d at 721; Duarte, 950 F.2d at 1263-64.
Here, as we discussed above, the district court appropri-
ately determined the defendants’ relevant conduct by
16                                   Nos. 05-2127 & 05-2220

properly applying § 1B1.3 of the sentencing guidelines,
and we find that defendants’ sentences are reasonable.


  C. McCoy’s Plea Agreement
  According to McCoy, as part of his plea agreement, he
agreed to cooperate with the government with the under-
standing that the government would move the district
court to impose a sentence reflecting his assistance. McCoy
argues that the government breached the plea agreement.
Because McCoy failed to present this argument to the
district court at sentencing, we review the district court’s
judgement for plain error. United States v. D’Iguillont, 979
F.2d 612, 614 (7th Cir. 1992). In order to prevail, McCoy
must show that there was error; the error was plain or
obvious; the error affected his substantial rights; and
the error seriously affects the fairness, integrity, or
public reputation of judicial proceedings. United States v.
Salazar, 453 F.3d 911, 913 (7th Cir. 2006) (citation
omitted).
   “A prosecutor’s refusal to request a downward departure
is . . . not reviewable for arbitrariness or bad faith.” United
States v. Burrell, 963 F.2d 976, 985 (7th Cir. 1992). The
government’s evaluation of the extent of a defendant’s
assistance is accorded substantial weight. See U.S.S.G.
§ 5K1.1, Application Note 3. “The prosecutor, not the
court, is to assess the value of the defendant’s assistance.”
Burrell, 963 F.2d at 985. However, “the government must
fulfill any promise that it expressly or impliedly makes
in exchange for a defendant’s guilty plea.” United States v.
Ingram, 979 F.2d 1179, 1184 (7th Cir. 1992) (citing
Santobello v. New York, 404 U.S. 257, 261 (1971)). Because
plea agreements are contracts, their content and mean-
ing are determined according to ordinary contract princi-
ples. Id. “A defendant’s rights under a plea agreement are
limited by what the parties in fact agreed to.” United
Nos. 05-2127 & 05-2220                                        17

States v. Lezine, 166 F.3d 895, 901 (7th Cir. 1999). In
exchange for McCoy’s guilty plea, the government
agreed to dismiss the remaining counts of his indictment.
Additionally, the plea agreement stated:
    If the defendant provides substantial assistance before
    sentencing, the United States agrees to move the
    Court to impose a sentence reflecting that assis-
    tance. . . . The decision whether to make such a re-
    quest based upon substantial assistance rests entirely
    within the discretion of the United States Attorney’s
    Office for the Western District of Wisconsin.
  McCoy argues that because the government acknowl-
edged that he had provided substantial assistance prior
to sentencing, it was obligated to file a motion for down-
ward departure under U.S.S.G. § 5K1.1.6 In support of
his contention that the government had determined that
he had provided substantial assistance before sentencing,
McCoy relies on two statements made by the government.
First, the government told the probation officer, about
a month before sentencing, that it planned to file a § 5K1.1
motion at or prior to sentencing. Second, at sentencing, the
government told the court that “immediately upon his
arrest . . . [McCoy] began providing very full cooperation,
very significant cooperation in several cases including
homicides both here and in other locations.”
  The government acknowledges that McCoy provided
significant cooperation; however, it contends that McCoy’s
cooperation was not complete at the time of his sentenc-
ing and denies ever characterizing McCoy’s assistance as


6
   Section 5K1.1 of the Sentencing Guidelines provides that “upon
motion of the government stating that the defendant has
provided substantial assistance in the investigation or prosecu-
tion of another person who has committed an offense, the
court may depart from the guidelines.”
18                                Nos. 05-2127 & 05-2220

being “substantial.” The government also contends that
the terms of the plea agreement gave it the sole discre-
tion to file a U.S.S.G. § 5K1.1 motion. See Burrell, 963
F.2d at 985 (finding that “the government’s refusal to move
for departure pursuant to § 5K1.1 was within its prosecu-
torial discretion”). As in Burrell, the government did not
promise McCoy a § 5K1.1 motion in exchange for his
guilty plea. Instead, the government agreed to dismiss
counts one through six of the indictment, and acknowl-
edged its discretion to move for a sentence reflecting
McCoy’s assistance if it determined that he had provided
substantial assistance. At sentencing, the government
indicated that it intended to file a motion for a reduc-
tion in McCoy’s sentence pursuant to Federal Rule of
Criminal Procedure Rule 35(b) if McCoy’s cooperation
continued and asked the court to dismiss the remaining
counts against McCoy.
  Although the determination of when a defendant has
provided substantial assistance is a power that can be
abused, we agree with the government that pursuant to
the plea agreement, McCoy had agreed that the decision
whether to move for departure rested entirely within the
government’s discretion. Because the government did
not induce McCoy’s guilty plea by an unkept bargain
and because the remaining counts against McCoy were
dismissed, the government did not breach the plea agree-
ment.


  D. Imposition of McCoy’s $50,000 Fine
  Finally, McCoy argues that the district court failed to
make the findings required under 18 U.S.C. § 3572(a) and
U.S.S.G. § 5E1.2(d) before imposing a fine of $50,000 and
that the fine was unreasonable because the amount
exceeds his present and future ability to pay. When a
district court determines that a fine is in order, we will
Nos. 05-2127 & 05-2220                                   19

only reverse its factual finding if it is clearly erroneous.
United States v. Petty, 132 F.3d 373, 382 (7th Cir. 1997).
  Pursuant to U.S.S.G. § 5E1.2(a), “[t]he court shall
impose a fine in all cases, except where the defendant
establishes that he is unable to pay and is not likely to
become able to pay any fine.” It is the defendant’s burden
to show that he does not have the financial means to pay
a fine. United States v. Gellene, 182 F.3d 578, 597 (7th Cir.
1999). While it is true that both 18 U.S.C. § 3572(a) and
U.S.S.G. § 5E1.2(d) provide factors that a district court
shall consider before imposing a fine, “express or specific
findings regarding each of the relevant factors . . . are
not required.” United States v. Bauer, 129 F.3d 962, 964-
66 (7th Cir. 1997). As we have stated previously,
    We will remand the imposition of a fine only when it
    is unclear that the district court properly has consid-
    ered the relevant factors, such as when the district
    court adopts the factual findings contained in the
    presentence report but deviates from the fine recom-
    mendation, if any, made by the United States Proba-
    tion Office, or alternatively, if the district court de-
    clines to adopt the findings in the presentence report
    and makes no findings of its own.
Bauer, 129 F.3d at 968.
  McCoy has failed to meet his burden of showing that he
could not pay the $50,000 fine. At sentencing, McCoy did
not address the issue of missing drug proceeds or dis-
cuss any of his financial obligations. Instead, he asserted
that regardless of his past accumulation of assets, he was
now indigent and lacked the means to pay a fine. The PSR
resolved that while McCoy had a net worth of $6,745, his
total assets were valued at $524,500. The district court
noted that McCoy had been able to accumulate several
expensive assets despite his limited verifiable assets.
According to the PSR, McCoy had made several invest-
20                                 Nos. 05-2127 & 05-2220

ments in real estate that could not be explained through
legitimate financial means. From January 1999 through
March 2004, McCoy and his wife deposited approx-
imately $823,527 into several bank accounts. The PSR
also noted that at the time of his arrest, McCoy was
current with payment on the vehicles that he leased: a
$500-per-month Mercedes Benz, a $380-per-month PT
Cruiser, and his wife’s Volvo SUV.
   The district court accepted the factual findings in the
PSR and relied on the uncontested finding that “significant
drug proceeds were generated over the course of the
conspiracy and all of the proceeds may not be accounted
for . . . . [T]o ensure the disgorgement of any existing drug
proceeds, we believe the imposition of a fine within the
guideline range is necessary.” The district court com-
mented that based upon McCoy’s past criminal activity,
it could not make the determination that McCoy no longer
had any assets and found that a $50,000 fine was both
appropriate and necessary. In light of its careful con-
sideration and acceptance of the PSR’s findings, the
district court did not err in imposing the $50,000 fine.


                     III. Conclusion
  For the reasons stated above, we AFFIRM the defendants’
sentences.
Nos. 05-2127 & 05-2220                               21

A true Copy:
      Teste:

                     ________________________________
                     Clerk of the United States Court of
                       Appeals for the Seventh Circuit




                 USCA-02-C-0072—6-5-07
