                     United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 96-2864
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * Eastern District of Missouri.
Bruce Barresse,                          *
                                         *
             Appellant.                  *
                                    ___________

                  Submitted:       April 4, 1997
                      Filed:       June 9, 1997
                                   ___________

Before McMILLIAN, FAGG, and LOKEN, Circuit Judges.
                            ___________

LOKEN, Circuit Judge.

       After Bruce Barresse pleaded guilty to conspiring to possess methamphetamine
with intent to distribute, the district court sentenced him to 188 months in prison and
five years supervised release. On appeal, Barresse argues that the district court erred
in denying his motion to withdraw his guilty plea and committed an error in applying
the Sentencing Guidelines. We reject the latter contention but remand for further
consideration of Barresse’s motion to withdraw his plea.
       1. On March 7, 1996, Barresse signed a letter agreement in which he agreed to
cooperate in on-going criminal investigations. Pursuant to that agreement, on April 3
Barresse waived indictment, entered a plea of guilty to a one-count methamphetamine
conspiracy information, and signed a Stipulation of Facts Relevant to Sentencing. On
July 1, after the government advised that it would not file a downward departure motion
under 18 U.S.C. § 3553(e) and U.S.S.G.§ 5K1.1, Barresse moved to compel the
government's compliance with the plea agreement or to permit withdrawal of his guilty
plea. On July 9, at sentencing, the district court denied that motion on the ground that
deciding whether Barresse had provided substantial assistance “is within the
government’s decision-making and discretion,” absent an abusive motive that had not
been established in this case. Barresse appeals that ruling.

      When the government fails to fulfill a material term of a plea agreement, the
defendant may seek specific performance or may seek to withdraw his plea. See
Santobello v. New York, 404 U.S. 257, 262-63 (1971). An unambiguous,
unconditional promise to file a downward departure motion is binding on the
government. See United States v. Coleman, 895 F.2d 501, 506 (8th Cir. 1990). If such
a promise was part of the inducement or consideration underlying a guilty plea, its
breach will entitle defendant to relief.

      In United States v. Kelly, 18 F.3d 612, 616 (8th Cir. 1994), and United States
v. Romsey, 975 F.2d 556, 557 (8th Cir. 1992), we affirmed denial of the relief Barresse
seeks because the plea agreements clearly preserved the government’s prerogative to
decide whether defendant’s cooperation warranted a substantial assistance motion, and
therefore the government’s refusal to file that motion was not a breach of the plea
agreement. In this case, on the other hand, the cooperation agreement provided that,
“in exchange for [Barresse] providing truthful information, complete cooperation,
truthful testimony and assistance . . . the Government agrees to: File a motion pursuant
to [§ 5K1.1 and § 3553(e)] recommending a downward-departure.” The Stipulation
of Facts Relevant to Sentencing in turn provided: “In exchange for [Barresse’s] plea

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of guilty and the fulfillment of the conditions of the attached cooperation agreement,
the Government agrees to file a downward-departure motion.”

        We conclude that these agreements did not unambiguously reserve to the
government its customary discretion to decide whether Barresse's cooperation
warranted a substantial assistance motion. The cooperation agreement conditioned
such a motion on Barresse providing truthful information and testimony and “complete
cooperation.” To defendants and defense attorneys who negotiate such agreements,
"complete cooperation" may well connote doing all one can do to assist -- an objective
standard -- whereas providing "substantial assistance" connotes doing enough to satisfy
the government’s unilateral notion of what assistance is “substantial.” In other words,
unlike the plea agreement in Kelly, these documents read as a whole do not make it
clear that an ambiguous term, “complete cooperation,” was intended to mean
cooperation that amounts to substantial assistance. Accordingly, we must remand for
further proceedings to determine (i) what the parties meant by “truthful information,
complete cooperation, truthful testimony and assistance” in Part I of the cooperation
agreement; (ii) whether Barresse met that condition as construed; and (iii) if Barresse
satisfied the preconditions to the government’s promise to file a substantial assistance
motion, whether he is now entitled to relief for the government’s breach of that
promise. We express no views on the merits of those issues.

       2. Barresse also argues the district court erred in increasing his base offense
level under U.S.S.G.§ 2D1.1(b)(1) because he possessed a firearm during the course
of conduct that included the conspiracy offense to which he pleaded guilty. We
disagree. The firearm, drug paraphernalia, and a quantity of amphetamine were seized
from Barresse during a traffic stop in December 1994. His Stipulation of Facts
Relevant to Sentencing recited that he was involved in the methamphetamine
distribution conspiracy between April 1995 and February 1996. Assuming this issue
was properly preserved in the district court, we conclude the court did not clearly err
in finding a sufficient nexus between Barresse’s firearm possession and his drug-

                                          -3-
trafficking activity. See U.S.S.G. App. C, Amendment 394 (clarifying that the relevant
conduct provisions of § 1B1.3(a)(2) apply); United States v. Mumford, 25 F.3d 461,
470 (7th Cir. 1994); United States v. Hayes, 15 F.3d 125, 127 (8th Cir.) (standard of
review), cert. denied, 512 U.S. 1225 (1994).

       The judgment of the district court is reversed and the case is remanded for
further proceedings consistent with this opinion.

      A true copy.

             Attest:

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




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