                                                             [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT                      FILED
                         ________________________           U.S. COURT OF APPEALS
                                                              ELEVENTH CIRCUIT
                                                                  June 20, 2006
                                No. 05-10961                   THOMAS K. KAHN
                            Non-Argument Calendar                  CLERK
                          ________________________

                     D. C. Docket No. 04-00037-CR-4-RH

UNITED STATES OF AMERICA,


                                                                 Plaintiff-Appellee,

                                     versus

TERRY L. SCOTT,

                                                             Defendant-Appellant.


                          ________________________

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

                                 (June 20, 2006)

Before ANDERSON, BIRCH and WILSON, Circuit Judges.

PER CURIAM:

     Terry L. Scott appeals his conviction for conspiracy to distribute and
possess with intent to distribute more than 50 grams of a mixture and substance

containing cocaine base, in violation of 21 U.S.C. §§ 841(b)(1)(A)(iii) and 846.

According to Scott: (1) the government acted in bad faith and violated its plea and

cooperation agreement (“plea agreement”) with Scott when the government

refused to file a substantial assistance motion pursuant to U.S. Sentencing

Guidelines Manual (“U.S.S.G.”) § 5K1.1; and (2) the district court erred by

denying Scott’s motion to withdraw his guilty plea, because it was not entered

knowingly and voluntarily. We affirm Scott’s conviction.

      Although Scott provided the government with information, the government

explained at sentencing that Scott’s version of events conflicted with that of his co-

defendant, Dwayne Montgomery. The government questioned Scott’s credibility,

because Montgomery had assisted the government in other matters, the

government believed that he had been truthful in doing so, and the statements of a

third person, Reginald Denson, tended to support Montgomery’s version of events.

The government requested that Drug Enforcement Administration (“DEA”)

officials submit both Montgomery and Scott to polygraph examinations, but the

DEA would agree to polygraph only one of the two. Montgomery received the

polygraph examination and passed it. Thus, the government was “strongly

suspicious” that Scott was not telling the truth and declined to a file a substantial



                                           2
assistance motion. This rationale is “patently unjust,” Scott argues, because he was

never permitted to take a polygraph examination and establish his truthfulness. By

denying him that opportunity, Scott contends, the government effectively deprived

him of the chance to provide substantial assistance, acted in bad faith, and

breached his plea agreement.

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

that this court reviews de novo.” United States v. Mahique, 150 F.3d 1330, 1332

(11th Cir. 1998) (per curiam) (emphasis omitted). In the instant case, Scott’s prior

drug convictions meant that he faced a mandatory minimum of life, and there is no

claim that he qualified for “safety valve” relief. See 21 U.S.C. § 841(b)(1)(A); 18

U.S.C. § 3553(f); United States v. Simpson, 228 F.3d 1294, 1304 (11th Cir. 2000).

Thus, Scott’s only hope for a lesser sentence (absent an acquittal) was to convince

the government to move for a downward departure pursuant to 18 U.S.C. § 3553(e)

and U.S.S.G. § 5K1.1. See Simpson, 228 F.3d at 1304. Scott’s plea agreement

states in relevant part:

       If, in the sole discretion of the United States Attorney, TERRY L.
       SCOTT is deemed to have provided substantial assistance in the
       investigation or prosecution of other persons who have committed
       offenses, if TERRY L. SCOTT has otherwise complied with all
       terms of this agreement, and if this assistance is prior to sentencing or
       within the time provided by Rule 35, Federal Rules of Criminal
       Procedure, then the United States Attorney will file a substantial
       assistance motion.

                                          3
Clearly, the express terms of the plea agreement place the determination as to

whether Scott has provided substantial assistance within the “sole discretion” of

the United States Attorney. Moreover, we have previously determined that “a

sentencing court may not depart downward pursuant to U.S.S.G. § 5K1.1 for

substantial assistance without a government motion, unless the court finds that the

government’s refusal to file such a motion was based on an unconstitutional

motive.” United States v. Munoz-Realpe, 21 F.3d 375, 379 n.7 (11th Cir. 1994)

(citing Wade v. United States, 504 U.S. 181, 184-86, 112 S. Ct. 1840, 1843-44, 118

L. Ed. 2d 524 (1992)); see United States v. Forney, 9 F.3d 1492, 1502 (11th Cir.

1993) (“[J]udicial review is appropriate when there is an allegation [of bad faith]

and a substantial showing that the prosecution refused to file a substantial

assistance motion because of a constitutionally impermissible motivation, such as

race or religion.”); United States v. Nealy, 232 F.3d 825, 831 (11th Cir. 2000)

(explaining that we “limit our review of the government’s refusal to file substantial

assistance motions to claims of unconstitutional motive”).1 Here, Scott does not

predicate his claim of bad faith on any alleged unconstitutional motive (nor did he

       1
          Scott contends that our decision in Forney misread Wade and urges us to adopt the
position of the Third Circuit in United States v. Issac, 141 F.3d 477, 483 (3d Cir. 1998)
(determining that “a district court is empowered to examine for ‘good faith’ a prosecutor’s
refusal to file a § 5K1.1 motion pursuant to a plea agreement that gives the prosecutor ‘sole
discretion’ to determine whether the defendant’s assistance was substantial”). We must decline,
for we are bound by our precedent in Forney. See, e.g., United States v. Brown, 342 F.3d 1245,
1246 (11th Cir. 2003) (reciting prior panel rule).

                                               4
do so below), but rather on the government’s decision to discount his statements

without affording him a polygraph examination. Thus, we cannot review Scott’s

bad faith claim.2

       Scott also contends that the district court erred in denying his motion to

withdraw his guilty plea, because it was not entered knowingly and voluntarily.

We review the denial of a request to withdraw a guilty plea for abuse of discretion.

United States v. Freixas, 332 F.3d 1314, 1316 (11th Cir. 2003). “After the district

court has accepted a plea and before sentencing, a defendant may withdraw a guilty

plea if ‘the defendant can show a fair and just reason for requesting the

withdrawal.’” United States v. Brehm, 11th Cir. 2006, __ F.3d __, (No. 05-13426,

Mar. 17, 2006) (quoting Fed. R. Crim. P. 11(d)(2)(B)). In determining whether the

defendant meets this burden, we consider the totality of the circumstances,

including: “(1) whether close assistance of counsel was available; (2) whether the

plea was knowing and voluntary; (3) whether judicial resources would be

conserved; and (4) whether the government would be prejudiced if the defendant

were allowed to withdraw his plea.” Id. (internal quotes omitted).


       2
         Scott further asserts that the district court, when imposing sentence, could have
considered his “substantial assistance” even in the absence of a § 5K1.1 motion by the
government, because the Sentencing Guidelines are advisory in the wake of United States v.
Booker, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005). This argument is without merit.
See United States v. Shelton, 400 F.3d 1325, 1333 n.10 (11th Cir. 2005) (explaining that even
after Booker, district courts are still bound by statutory minimums).

                                              5
      Scott claims that his plea was not knowing and voluntary because, due to the

government’s failure to perform a polygraph examination, he was effectively

denied the chance to provide substantial assistance. First of all, this is essentially a

restatement of the “bad faith” argument we have already rejected above. Second,

while Scott may have demonstrated that he is displeased with the manner in which

the government exercised its discretion under the plea agreement, Scott has not

shown that, at the time of his plea, the district court failed to advise him as to

existence of that discretion. In fact, during Scott’s rearraignment the district court

stated: “If you assist the government–by ‘the government,’ I mean the prosecutor,

the prosecution–it’s entirely up to the government to decide whether that assistance

rises to the level of substantial assistance. Do you understand?” Scott responded

in the affirmative, as he did to the court’s additional warning that “[i]f the

government decides that any assistance you’ve provided does not rise to the level

of substantial assistance, there won’t be anything you can do about it. You’ll be

stuck with that decision. Do you understand?”3 Scott has not demonstrated any

violation of Fed. R. Crim. P. 11(b) or (c), and may not withdraw his guilty plea

merely because he believes the DEA’s refusal to provide him with a polygraph

examination was unfair. We find no abuse of discretion.



      3
          We also note that Scott had the assistance of counsel during his plea colloquy.

                                                 6
      We cannot review Scott’s “bad faith” challenge to the government’s refusal

to file a substantial assistance motion, and the district court did not abuse its

discretion in denying Scott’s request to withdraw his plea. Accordingly, we affirm

Scott’s conviction.

      AFFIRMED.




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