                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                 UNITED STATES COURT OF APPEALS                          DEC 28 1999

                                TENTH CIRCUIT                       PATRICK FISHER
                                                                             Clerk


 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
                                                      Nos. 98-3328
                                                           98-3329
 v.
                                                (D.C. Nos. 97-CR-10071-5
                                                   & 97-CR-10071-6)
 JERRY YOUMANS and
                                                        (Kansas)
 MARC ALAN KOONS,

          Defendants-Appellants.



                          ORDER AND JUDGMENT *


Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.


      After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

      Pursuant to plea agreements, co-defendants Mr. Youmans and Mr. Koons

pled guilty to conspiracy to distribute methamphetamine in violation of 21 U.S.C.


      *
       This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, or collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
§ 846. They both appeal their sentences. Since the facts and the law are virtually

identical in these cases, we have consolidated their appeals for disposition. We

affirm.

      In Mr. Youmans’ plea agreement, the government agreed that if, in its sole

discretion, it found his cooperation to be substantial, it would file a motion for

downward departure from the U.S. Sentencing Guidelines. See Rec., Supp. vol. I,

Doc. 209, Plea Agreement ¶ 2(b). Unsatisfied with Mr. Youmans’ assistance, the

government informed him less than an hour before his sentencing hearing that it

would not be filing the motion. The district court denied Mr. Youmans’ request

for a continuance to review the government’s reasons for not filing the motion.

      Mr. Youmans argues the district court abused its discretion in denying the

continuance. We review the denial of a request for a continuance for an abuse of

discretion. See United States v. Garcia, 78 F.3d 1457, 1467 (10th Cir. 1996). A

district court abuses its discretion to grant a continuance only if the denial is

arbitrary and substantially impairs the defendant’s opportunity to secure a fair

sentence. See id.

      The district court here did not grant a continuance because of prior

continuances granted in the case, and because it recognized there was nothing

legally it could do regarding the government’s failure to file the motion for

departure. See Rec., vol. II, doc. 294 at 13. Absent a breach of the plea


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agreement, the district court is correct that it cannot force prosecutors to file

motions to depart. See Wade v. United States, 504 U.S. 181, 186 (1992).

      The government breaches a plea agreement such as the one here when its

decision not to file a motion for departure is animated by unconstitutional or

illegitimate motives. See United States v. Courtois, 131 F.3d 937, 938 (10th Cir.

1997). Mr. Youmans does not argue that the government had an unconstitutional

or illegitimate motive; rather, he argues the government’s failure to give adequate

notice resulted in the lack of an opportunity to show an illegitimate motive.

After Mr. Youmans made this argument to the district court at the sentencing

hearing, the government gave a detailed account of why it declined to move for a

departure. See Rec., vol. II, doc. 294 at 10-12. Since the district court reviewed

the government’s motives, it did not abuse its discretion in denying Mr. Youmans

a fuller opportunity to do the same.

      Mr. Koons brings forth two issues for our review. He first argues the

government breached its plea agreement with him by failing to forward a

confidential memorandum to the district court describing his cooperation as

promised in the plea agreement. See Rec., vol. I, doc. 216, Plea Agreement ¶

2(b). Like Mr. Youmans, Mr. Koons also appeals the district court’s failure to

grant a continuance at the sentencing hearing.

      Although Mr. Koons’ counsel did not object to the lack of the confidential


                                          -3-
memorandum, we have held that failure to object to breach of a plea agreement

does not waive the issue. See Courtois, 131 F.3d at 938 n.2. Whether a breach

occurred is an issue we review de novo. See United States v. Belt, 89 F.3d 710,

712 (10th Cir. 1996).

      Although the government did not file a confidential memorandum regarding

the extent of Mr. Koon’s cooperation, it did inform the sentencing court of Mr.

Koons’ cooperation in a prior hearing for continuance of his sentencing. See

Rec., vol. IV, at 3-5. Mr. Koons has not stated that he provided any further

cooperation of which the district court was not apprised. Thus, any breach by the

government of the specific requirements of its plea agreement with Mr. Koons

was harmless. See Beck, 89 F.3d at 713.

      Regarding Mr. Koons’ second argument, our disposition of Mr. Youmans’

same complaint about the lack of a continuance applies equally to Mr. Koons.

Mr. Koons’ substantial rights were not affected by the failure of the district court

to grant a continuance.

      For the foregoing reasons, the sentences imposed by the district court in

each of these cases are AFFIRMED.

                                       ENTERED FOR THE COURT

                                       Stephanie K. Seymour
                                       Chief Judge



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