                            PUBLISHED

UNITED STATES COURT OF APPEALS
                FOR THE FOURTH CIRCUIT


UNITED STATES OF AMERICA,              
                 Plaintiff-Appellee,
                 v.                               No. 99-4461
GLEN SCOTT SNOW,
             Defendant-Appellant.
                                       
           Appeal from the United States District Court
      for the Western District of Virginia, at Charlottesville.
            James H. Michael Jr., Senior District Judge.
                           (CR-98-45)

                      Argued: September 26, 2000

                      Decided: December 7, 2000

        Before WILKINSON, Chief Judge, and MOTZ and
                    KING, Circuit Judges.



Affirmed by published opinion. Judge King wrote the opinion, in
which Chief Judge Wilkinson and Judge Motz joined.


                             COUNSEL

ARGUED: Andrew Lyman Wilder, Charlottesville, Virginia, for
Appellant. Bruce A. Pagel, Assistant United States Attorney, Char-
lottesville, Virginia, for Appellee. ON BRIEF: Robert P. Crouch, Jr.,
United States Attorney, Charlottesville, Virginia, for Appellee.
2                      UNITED STATES v. SNOW
                             OPINION

KING, Circuit Judge:

   Glen Scott Snow pleaded guilty in the Western District of Virginia
to being a felon in possession of a firearm, and he was sentenced to
thirty-seven months’ imprisonment. Snow appeals his sentence on the
ground that the Government breached the plea agreement by refusing
to move for a downward departure. See United States Sentencing
Commission, Guidelines Manual, §5K1.1 (Nov. 1997). We find no
error and affirm Snow’s sentence.

                                 I.

   The tragic incident that led to Snow’s conviction and sentence was
the shooting death of Janice Garrison on November 29, 1997, while
she stood on her property in northern Albemarle County. Although
Mrs. Garrison’s husband was nearby, he did not see who fired the
fatal shot. An ensuing investigation revealed that Snow and several
others were hunting in the woods near the Garrison property that day.
Snow, who had previously been convicted of felony possession of
controlled substances, was indicted by the grand jury in the Western
District of Virginia in July 1998, pursuant to 18 U.S.C. § 922(g)(1),
for being, on November 29, 1997, a felon in possession of a firearm.

   Thereafter, in October 1998, Snow entered into a plea agreement
with the United States, by which he consented to plead guilty to the
§ 922(g)(1) charge. The plea agreement provided in part:

    In return for the defendant’s production of the firearm
    described in the Indictment to law enforcement authorities,
    and the defendant’s truthful and thorough cooperation with
    said law enforcement officials, the government agrees to
    make a motion at sentencing pursuant to U.S.S.G. § 5K and
    agrees to recommend that this Court sentence the defendant
    to a period of probation rather than incarceration.

At the sentencing hearing in June 1999, the Government declined to
make a § 5K1.1 motion, maintaining that Snow had failed to comply
                        UNITED STATES v. SNOW                           3
with his obligation under the plea agreement to truthfully and thor-
oughly cooperate.1 Snow had denied involvement in the shooting and,
at sentencing, stated that he did not fire his gun and knew "in [his]
heart there’s no way [he] could have hurt anybody." J.A. 32.

   In support of its claim that Snow had breached his plea agreement
obligations, the Government presented the evidence of ATF Special
Agent John Healey, who testified regarding the investigation into
Mrs. Garrison’s death. Agent Healey’s testimony, as detailed infra,
tended to implicate Snow in the fatal shooting. The district court
determined that the facts related by Agent Healey provided a suffi-
cient basis for the Government to conclude that Snow’s account of the
events surrounding Mrs. Garrison’s shooting was not completely
truthful. The court then sentenced Snow to thirty-seven months in
prison, followed by thirty-six months’ supervised release. Snow main-
tains on appeal that the district court erred in upholding the Govern-
ment’s decision not to move for downward departure.

                                   II.

   It is settled that a defendant alleging the Government’s breach of
a plea agreement bears the burden of establishing that breach by a
preponderance of the evidence. See United States v. Conner, 930 F.2d
1073, 1076 (4th Cir. 1991).2 We review a district court’s findings
regarding "what the parties said or did" for clear error, "while princi-
ples of contract interpretation applied to the facts are reviewed de
novo." United States v. Martin, 25 F.3d 211, 217 (4th Cir. 1994)
(quoting L.K. Comstock & Co. v. United Eng’rs & Constructors, 880
F.2d 219, 221 (9th Cir. 1989)). Although the historical facts are not
  1
     It is undisputed that Snow satisfied his obligation to surrender the
firearm.
   2
     Snow asks us to adopt the Sixth Circuit’s practice of requiring the
Government to establish a defendant’s breach by a preponderance of the
evidence before repudiating its own promises under a plea agreement.
See United States v. Benjamin, 138 F.3d 1069, 1074 (6th Cir. 1998). Our
decision in Conner, however, clearly places the burden on Snow, as the
party seeking enforcement of the plea agreement, to first establish by a
preponderance of the evidence that he had fulfilled his obligations there-
under. See Conner, 930 F.2d at 1076.
4                      UNITED STATES v. SNOW
in dispute here, the ultimate question of whether Snow breached the
plea agreement by failing to provide "truthful cooperation" is one of
fact, and we must therefore review the sentencing court’s finding for
clear error. See Conner, 930 F.2d at 1076.

                                 III.

                                  A.

   We conclude that the district court did not clearly err in determin-
ing that Snow failed to provide "truthful and thorough cooperation,"
as he was obliged to do under the plea agreement. Snow emphasizes,
and the district court acknowledged, that the plea agreement provision
at issue did not contain the customary language explicitly reserving
the Government’s discretion to make or withhold its § 5K1.1 motion.
This omission, Snow contends, should be construed to vest the deter-
mination of whether the defendant provided "truthful and thorough
cooperation" in the sentencing court, rather than the Government.

   We reject this contention. The Government’s discretion with
respect to plea negotiations and sentencing recommendations is inher-
ent and expansive; it need not be explicitly reserved in the terms of
a plea agreement. Where, as here, a plea agreement contemplates that
the Government will make a § 5K1.1 motion if the defendant provides
truthful cooperation, the Government remains the appropriate party to
assess whether the defendant has performed that condition ade-
quately. Even if the plea agreement is silent on the point, the Govern-
ment retains the responsibility — and, with it, the discretion — to
evaluate the defendant’s truthful cooperation. Moreover, the Govern-
ment is entitled to have that evaluation reviewed only for bad faith or
unconstitutional motive. See United States v. Huang, 178 F.3d 184,
188-89 (3d Cir. 1999).

   Our Conner decision instructs a sentencing court to initially deter-
mine whether the Government has bargained away its § 5K1.1 discre-
tion; if so, the court must assume the task of evaluating whether the
defendant has satisfied his contractual obligations. 930 F.2d at 1075.
In interpreting Conner, we have implied that the Government may
engage in such a bargain when, without specifically reserving its dis-
cretion, the Government conditions a § 5K1.1 motion on the defen-
                       UNITED STATES v. SNOW                         5
dant’s performance of certain obligations. See, e.g., United States v.
Wallace, 22 F.3d 84, 87 (4th Cir. 1994) ("The Conner agreement gave
rise to an enforceable promise as a matter of simple contract law; the
agreement in the instant case gave rise to no enforceable promise,
explicitly reserving discretion rather than promising anything."). We
have never squarely held, however, that the Government forfeits its
discretion by failing to reserve it in a plea agreement, and we decline
to do so here.

   We recognize that there are other courts that base reviewability of
§ 5K1.1 decisions on the plea agreement’s specific language — in
effect, regarding contractual silence as waiving the Government’s
§ 5K1.1 discretion. See, e.g., United States v. Price, 95 F.3d 364, 368
(5th Cir. 1996) (government’s indication that it "will file" a motion
in exchange for substantial assistance surrenders its discretion,
whereas if plea agreement states that government retains "sole discre-
tion" over the decision, refusal to do so is reviewable only for uncon-
stitutional motive); United States v. Courtois, 131 F.3d 937, 938-39
(10th Cir. 1997) (same).

  In our view, a waiver of prosecutorial discretion by way of plea
agreement must be explicit. See Huang, 178 F.3d at 188-89. In
Huang, the Third Circuit acknowledged that the clause sought to be
enforced by the defendant "did not specifically reserve to the Govern-
ment the sole discretion to evaluate whether the defendant has ren-
dered substantial assistance[.]" 178 F.3d at 188. The agreement was,
however, "implicitly subject" to the Sentencing Guidelines, which
"expressly lodge the decision to make the [§ 5K1.1] motion in the
Government’s discretion, regardless of whether the Government
expressly reserved such discretion in the plea agreement." Id.

                                  B.

   In this case, we believe that the district court, to the benefit of
Snow, employed a more exacting review of the Government’s refusal
to make a § 5K1.1 motion than was necessary. Applying an objective
standard, the court reasonably concluded that there were sufficient
facts to support the Government’s judgment that Snow had not been
"entirely truthful."
6                        UNITED STATES v. SNOW
   The evidence presented by Agent Healey revealed inconsistencies
between Snow’s account of the shooting incident and the evidence
otherwise obtained by the Government. For example, one of Snow’s
friends informed the police that when Snow returned from hunting on
the day of Mrs. Garrison’s shooting, Snow told the friend that "rounds
were whizzing by his head." This statement, which Snow subse-
quently disavowed, arguably placed him in the vicinity of the shooting.3
The Government possessed other circumstantial evidence connecting
Snow to the shooting. For instance, Snow’s hunting partner reported
that he and Snow had separated for about an hour, and that after hear-
ing shots fired in the general area where Mrs. Garrison was shot, the
hunting partner saw Snow emerge from that section of the woods.4

   Based on the totality of their investigation, the law enforcement
agencies arrived at a collective judgment that Snow had not been
truthful. Presented with Agent Healey’s testimony regarding the Gov-
ernment’s evidence and the judgment drawn therefrom, the district
court was clearly justified in finding objective support for the Govern-
ment’s decision to withhold the § 5K1.1 motion. This finding strongly
suggests that the Government exercised its discretion in a proper man-
ner.

                                    C.

   Snow also insists that the Government acted unfairly by inducing
a plea — and benefiting from some of its conditions — when it had
no expectation of fulfilling its own side of the bargain. Snow suggests
that the Government doubted the truthfulness of his denials at the
time it entered the plea agreement, and that those pre-existing doubts
informed the Government’s § 5K1.1 decision. Yet insofar as the Gov-
ernment harbored such doubts, it was up to Snow to assuage them by
either (1) demonstrating that his prior denials were worthy of cre-
    3
     Mr. Garrison informed the authorities that he fired a handgun three
times to scare off whoever had shot his wife.
   4
     Agent Healey also testified concerning the results of polygraph exam-
inations administered to Snow on two occasions: the first examination
being inconclusive, and the second indicating deception on Snow’s part.
In sentencing Snow, the district court disregarded the polygraph evi-
dence, finding that the results lacked "substantial indicia of reliability."
                       UNITED STATES v. SNOW                         7
dence; or (2) confessing his actual involvement, if any, in the shoot-
ing. Snow was given ample opportunity to pursue either tack. Under
the plea agreement, Snow bore the risk of non-persuasion, and, unfor-
tunately for Snow, that risk was actualized.

   We reject Snow’s argument that the Government acted improperly
in withholding its § 5K1.1 motion. Mere reliance on previously
acquired evidence does not vitiate the Government’s evaluation of a
defendant’s post-agreement truthfulness. At most, a defendant in
Snow’s position might invoke such reliance to support a claim that
the Government entered into the plea agreement in bad faith, entitling
the defendant to seek rescission. See, e.g., United States v. Knights,
968 F.2d 1483, 1489 (2d Cir. 1992) (noting, in the context of bad
faith analysis, that "it would have been fraudulent to have induced a
defendant’s plea with a promise that the government already knew it
was not going to keep"). Here, despite his complaints of unfairness,
Snow made no claim of actual bad faith, nor is there any reason to
infer it.

   Absent a claim of bad faith or unconstitutional motive, the sentenc-
ing court was right to honor the Government’s judgment that Snow
had failed to provide truthful and thorough cooperation. That this
evaluation was founded, wholly or in part, on evidence possessed by
the Government when it made the plea agreement is simply immate-
rial.

                                 IV.

  For the foregoing reasons, we affirm the sentence imposed on
Snow by the district court.

                                                          AFFIRMED
