 United States Court of Appeals
         FOR THE DISTRICT OF COLUMBIA CIRCUIT



Argued February 11, 2014              Decided July 22, 2014

                       No. 12-3111

               UNITED STATES OF AMERICA,
                       APPELLEE

                             v.

                      ROBERT HENRY,
                        APPELLANT


        Appeal from the United States District Court
                for the District of Columbia
                   (No. 1:12-cr-00180-1)


     Tony Axam Jr., Assistant Federal Public Defender,
argued the cause for appellant. With him on the briefs was
A.J. Kramer, Federal Public Defender.

    Katherine M. Kelly, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Ronald C.
Machen Jr., U.S. Attorney, and Elizabeth Trosman,
Chrisellen R. Kolb, and Julieanne Himelstein, Assistant U.S.
Attorneys.

   Before: KAVANAUGH and PILLARD, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
                              2
     PILLARD, Circuit Judge: Robert Henry was arrested and
charged with two sex offenses. In exchange for his guilty
plea on both counts, the government promised that the
prosecutor would inform the Departure Guideline Committee
of the United States Attorney’s Office about the nature and
extent of Henry’s cooperation, and, if the Committee
approved a downward departure motion, that the prosecutor
would file such a motion with the district court. Henry had in
fact promptly cooperated with authorities, and as a result of
his cooperation, two other men were investigated and
prosecuted for child pornography offenses. The prosecutor so
informed the Departure Committee, but the Committee
nonetheless declined to authorize a motion requesting that the
district court depart from the U.S. Sentencing Guidelines
based on substantial assistance under Guideline section
5K1.1.

     At his sentencing hearing and now on appeal, Henry
asserts that the government breached the plea agreement by
failing to tell the Departure Committee the complete “nature
and extent” of his cooperation. In the alternative, Henry
argues that the district court failed to explore adequately the
government’s reasons for declining to file a departure motion.
Because Henry identifies no difference between the
information he concedes the prosecutor provided to the
Departure Committee and what he believes the prosecutor
should have provided, and because the prosecutor
summarized for the district court both the information that the
prosecutor presented to the Committee and the Committee’s
basis for declining to approve the departure motion, we
affirm.
                                3
                                I

     Henry was arrested in May 2012 and charged with one
count of persuading or coercing an individual to travel to
engage in sexual activity for which a person can be charged
with a criminal offense, and one count of possession of child
pornography, in violation of 18 U.S.C. §§ 2422(a) and
2252A(a)(5)(B), respectively. As Henry’s counsel described,
those charges stemmed “from Mr. Henry’s use of the internet
to engage in conversations with a person (an undercover
police officer) purporting to have sex with his twelve year old
daughter.” Def.’s Sentencing Mem. at 1 (Nov. 29, 2012).
Specifically, “[f]or approximately three weeks, Mr. Henry and
the undercover officer engaged in conversations and Mr.
Henry ultimately agreed to meet the [undercover officer] and
his daughter” with the purpose of allowing Henry to have
sexual relations with her. Id. Henry was arrested when he
went to meet the undercover officer and the officer’s
purported daughter. He admitted to the police that he had
videos of child pornography on his cell phone, a search of
which recovered a number of such videos.

    In early September 2012, Henry executed an agreement
with the government, pleading guilty to both counts charged.
As relevant here, the government undertook the following
obligations in the plea agreement:

    This Office will inform the Departure Guideline
    Committee of the United States Attorney’s Office for
    the District of Columbia about the nature and extent of
    your client’s cooperation.[1]      If the Departure


1
 In the District of Columbia, a committee at the U.S. Attorney’s
Office, rather than the individual prosecutor in charge of a case,
                                4
   Guideline Committee of the United States Attorney’s
   Office for the District of Columbia, after evaluating
   the full nature and extent of your client’s cooperation,
   determines that your client has provided substantial
   assistance, then this Office will file a departure motion
   pursuant to Section 5K1.1 and 18 U.S.C. § 3553(e).
   In the event this Office, in its sole discretion, decides
   to file a departure motion pursuant to Section 5K1.1
   and 18 U.S.C. § 3553(e), your client will be afforded
   an opportunity to persuade the Court that he should be
   sentenced to a lesser period of incarceration than
   otherwise required by either the Sentencing Guidelines
   or any applicable mandatory minimum sentence
   established by statute. However, notwithstanding a
   determination by the Departure Guideline Committee
   of the United States Attorney’s Office for the District
   of Columbia that your client has provided substantial
   assistance, in the event your client should fail to
   specifically perform and fulfill completely each and
   every one of your client’s obligations under this plea
   agreement, then, the Government will be free from its
   obligations under the agreement, including but not
   limited to its obligations to file a departure motion
   pursuant to Section 5K1.1 of the Sentencing
   Guidelines and/or 18 U.S.C. § 3553(e).

Plea Agreement at 12 (Sept. 7, 2012).

     Henry had promptly cooperated with authorities, and, as
a result of his cooperation, two other men were investigated
and prosecuted for child pornography offenses. Before
sentencing, the government filed a proffer with the district


decides whether to file a substantial assistance motion. See In re
Sealed Case, 244 F.3d 961, 963 (D.C. Cir. 2001).
                                    5
court outlining Henry’s cooperation. It stated that “[a]lmost
immediately” Henry assisted authorities by going online to
talk with targets from whom Henry had received child
pornography. Cooperation Proffer at 1 (Dec. 5, 2012). Henry
introduced one named target to an undercover officer. That
target sent child pornography to the officer, was arrested, and
pled guilty to one count of distribution of child pornography
in the U.S. District Court for the District of Columbia. Id. at
1-2. The proffer also stated that Henry had facilitated the
identification and investigation of a second target, who had a
prior conviction for child pornography, was a registered sex
offender, and was “being prosecuted” but that “[a]t the time
of this writing . . . it is unknown what disposition of that case,
if any, has occurred.” Id. at 1.

     At some point before the signing of the plea agreement,
the prosecutor asked Henry whether he had had any hands-on
sexual contact with children, which Henry denied. But that
was unfortunately not the case. In November 2011—before
he was arrested in this case—Henry, then 22, had traveled
from the District of Columbia to Prince George’s County,
Maryland and had sex with a 13-year-old girl he met on
Facebook. When Maryland officials later interviewed Henry
about the incident, he confessed that he had had sex with the
girl, but protested that he thought she was close to 15 years
old at the time. Maryland officials filed a detainer for second
degree rape of a minor in mid-July of 2012, after Henry’s
arrest in this case and the drafting, but not the signing, of the
plea agreement.

    The government ultimately declined to file a departure
motion in this case for substantial assistance under section
5K1.1 of the Guidelines.2 The prosecutor explained to the

2
    That section provides in relevant part:
                               6
district court that the government refused to do so because of
Henry’s false statement about his prior hands-on sexual
contact with minors. See Gov’t Sentencing Mem. at 3-4 &
n.4 (Nov. 30, 2012); Sentencing Tr. 38 (Dec. 13, 2012).

     At sentencing, the district court rejected, among other
things, Henry’s contention that the government had breached
the plea agreement by failing to give the Departure
Committee more detailed information about the progress in
the prosecution of the second defendant. Sentencing Tr. 47-
49. The government did not argue and the court did not hold
that Henry breached the agreement. The district court
emphasized Henry’s pattern of sexually dangerous behavior
towards young girls and sentenced Henry to 135 months’
imprisonment on the persuading or coercing to travel count,
the lowest end of the applicable Sentencing Guidelines range,
to run concurrently with 120 months on the possession of
child pornography count, the statutory maximum. Id. at 54-
63.

    This appeal followed.




   Upon motion of the government stating that the defendant
   has provided substantial assistance in the investigation or
   prosecution of another person who has committed an
   offense, the court may depart from the guidelines.

U.S.S.G. § 5K1.1.
                              7
                              II

     It has long been the law that, “when a plea rests in any
significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement
or consideration, such promise must be fulfilled.” Santobello
v. New York, 404 U.S. 257, 262 (1971); see also United States
v. Jones, 58 F.3d 688, 691 (D.C. Cir. 1995) (“When a
prosecutor secures a plea with a promise, the promise must be
fulfilled.”); United States v. Doe, 934 F.2d 353, 361 (D.C.
Cir. 1991). “In other words, a plea agreement is a contract.”
Jones, 58 F.3d at 691.

    While “[e]ven in the absence of any contractual
arrangement, the Government’s decision not to file a section
5K1.1 motion, like any other prosecutorial decision, is subject
to constitutional limitations,” plea agreements “provide[]
additional protection” for defendants. Jones, 58 F.3d at 692.
The bargained-for promises are bolstered by an implied
obligation of good faith and fair dealing. Id. Where the
government breaches a plea agreement, remand for specific
performance of the agreement or withdrawal of the guilty plea
may be warranted. Santobello, 404 U.S. at 262-63.

     In interpreting the terms of a plea agreement, we look to
principles of contract law. United States v. Ahn, 231 F.3d 26,
35 (D.C. Cir. 2000); Jones, 58 F.3d at 691. In evaluating
whether a plea agreement has been breached, we look to the
reasonable understanding of the parties and construe any
ambiguities in the agreement against the government. In re
Sealed Case, 702 F.3d 59, 63 n.2 (D.C. Cir. 2012); United
States v. Rodgers, 101 F.3d 247, 253 (2d Cir. 1996). We
interpret the terms of a plea agreement de novo, United States
v. Gary, 291 F.3d 30, 33 (D.C. Cir. 2002); Jones, 58 F.3d at
691, and review the district court’s factual determinations for
                               8
clear error, Ahn, 231 F.3d at 35. As the defendant, Henry
maintains the burden of proving any breach by the
government. Id. at 36; United States v. Kilroy, 27 F.3d 679,
684 (D.C. Cir. 1994).

     Henry contends that the government breached the plea
agreement by failing to inform the Departure Committee of
the full “nature and extent” of his cooperation, as required by
the terms of the plea agreement and the implied obligations of
good faith and fair dealing. Specifically, he asserts, based on
the proffer filed with the district court, that the government
“did not explain that the defendant in Illinois who Mr. Henry
had helped apprehend was not merely a target, but was
scheduled for trial, and would possibly plead guilty.”
Appellant’s Br. 16. Henry reasons that if the prosecution
informed the Departure Committee of only as much as was
contained in the proffer, it omitted to tell the Committee “that
Mr. Henry’s assistance had led to concrete results, and not
simply speculative possibilities of prosecution” and thereby
breached the plea agreement. Id.

     The district court evidently concluded that Henry’s false
statement about the Maryland case mooted any contention
that the government breached the plea agreement—in essence
finding that given Henry’s lie, any governmental breach was
immaterial. Sentencing Tr. 48. We agree with the district
court’s result, but for a different reason.3 We conclude that
the government did not fail to provide the Departure
Committee with the full nature and extent of Henry’s
cooperation as required by the agreement.



3
  The government did not rely on the district court’s analysis on
appeal. See Oral Arg. Rec. 16:25-16:55, 20:40-22:10.
                               9
     Whether the government violated its plea commitment
turns on what information it gave to the Departure
Committee. Because the government has not provided a full
accounting—to Henry, the district court, or this court—of
what it in fact provided to the Departure Committee, we have
but a slim record on which to rely, as the government
acknowledged at argument. Oral Arg. Rec. 12:20-12:35. We
have previously expressed concern over the government’s
lack of transparency in similar circumstances, explaining:

   Because a defendant is not privy to the deliberations
   and actions of the U.S. Attorney’s Office . . . a
   defendant will face enormous difficulty in supporting
   [an allegation that the government acted in bad faith in
   carrying out its obligations under a plea agreement].
   To ameliorate this problem and to provide both the
   trial judge and a reviewing court with information that
   might help them weigh an allegation of bad faith, we
   suggest that prosecutors who enter into agreements
   like the one before us, but subsequently fail to file a
   section 5K1.1 motion, summarize for the district court
   what information they provided the Departure
   Committee, while at the same time safeguarding
   information that could compromise an ongoing
   investigation or endanger the defendant or others,
   together     with      any    explanation,    similarly
   circumscribed, that the Committee may have offered
   for finding the defendant’s assistance to be
   insubstantial.

Jones, 58 F.3d at 692. It is unclear how meaningful judicial
review can occur where the government fails to adhere to
such procedures.       See Oral Arg. Rec. 22:25-24:00
(government attorney acknowledging that, were the
prosecution not to be guided by Jones, “at a practical level, it
                              10
may be quite difficult” for a defendant to bring a claim of
breach, raising a “perplexing problem” regarding judicial
review). But because the parties here agree that the
government provided the Departure Committee with at least
the information that was included in the cooperation proffer
later filed with the district court, we assume as much.

    With regard to the Illinois defendant, the proffer stated:

   Almost immediately, under the supervision of the
   [undercover officer], the defendant agreed to go on-
   line to talk to targets [from] whom the defendant had
   received child pornography. During the course of
   those sessions and other sessions where the
   [undercover officer] took over the defendant’s
   identity, the target sent several images of child
   pornography to D.C. Further investigation revealed
   that this defendant had a prior conviction for child
   pornography, and was a registered sex offender. The
   [undercover officer] sent a “lead” to the state where
   the defendant sent the [child pornography], and
   according to the [undercover officer] that target is
   being prosecuted. At the time of this writing;
   however, it is unknown what disposition of that case,
   if any, has occurred.

Cooperation Proffer at 1.

     Henry’s argument is subtle. He does not contend that the
prosecutor omitted any particular cooperative action that he
took, such as testifying at another defendant’s trial or
identifying an additional offender. Nor does he point to any
concrete event in the criminal investigation or proceeding in
Illinois—such as a trial, plea, or the identification of further
evidence or testimony stemming from Henry’s cooperation—
                               11
that might conceivably influence the Departure Committee’s
evaluation of Henry’s cooperation and the fruits thereof. And
Henry does not argue that the fact that the second target was
being tried in Illinois, the only additional fact he identifies
that was not in the proffer, could conceivably bear on the
Committee’s evaluation of his cooperation. Instead, in his
view, the Committee should have been informed that the
second defendant was “pending trial” and “likely to plead.”
Sentencing Tr. 45. But the proffer’s description of the results
of Henry’s cooperation—that the target is a registered sex
offender with a prior child pornography conviction who was
“being prosecuted”—means the same thing. Henry has not
shown in this case that “pending trial,” or even being “likely
to plead,” is meaningfully different from “being prosecuted.”
Because we see no daylight between the information
contained in the proffer and what Henry argues should have
been disclosed, we conclude that the government did not
breach its plea obligations.

     In the alternative, relying on Jones, Henry asserts that the
district court failed to explore adequately the government’s
reasons for declining to file a departure motion. In Jones, we
stated that “prosecutors who enter into agreements like the
one before us, but subsequently fail to file a section 5K1.1
motion, [should] summarize for the district court what
information they provided the Departure Committee,”
“together with any explanation” the Committee offered for
declining to approve a departure motion. Jones, 58 F.3d at
692; see also In re Sealed Case, 244 F.3d 961, 966 (D.C. Cir.
2001). Whether that statement is a mandate or a suggestion,
the government satisfied Jones’s procedures here. As Henry
concedes, the government filed a cooperation proffer with the
district court that summarized the information the prosecutor
provided to the Committee. At sentencing, the prosecutor
explained to the district court the Departure Committee’s
                            12
basis for declining to approve the departure motion: Henry’s
untruthfulness about his past sexual contact with minors.
Sentencing Tr. 38-39. The prosecutor thus provided both a
summary of the information she provided to the Committee
and the explanation the Committee offered for declining to
approve the departure motion. Jones requires no more.

    We therefore affirm.

                                                So Ordered.
