U.S. v. Kelly, 93-2202

• Decision Date: 11 March 1994
• Docket Number: No. 93-2202,93-2202
• Citation: 18 F.3d 612
• Parties: UNITED STATES of America, Appellee, v. Lershawn Vincent KELLY, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 612

18 F.3d 612

UNITED STATES of America, Appellee, v. Lershawn Vincent KELLY, Appellant.

No. 93-2202.

United States Court of Appeals,

Eighth Circuit.

Submitted Oct. 13, 1993.

Decided March 11, 1994.

Before LOKEN, Circuit Judge, CAMPBELL, ^* Senior Circuit Judge, and HANSEN, Circuit Judge.

HANSEN, Circuit Judge.

Lershawn Vincent Kelly appeals the district court's ¹ denial of his motions for a downward departure and to withdraw his guilty plea. Kelly moved for a downward departure from the mandatory minimum 20-year sentence applicable to him, contending that the government breached the written plea agreement by refusing to so move in spite of Kelly's assertion that he fully cooperated to the best of his ability in accordance with the agreement. To remedy the alleged breach, Kelly seeks resentencing with an order from this court compelling a government motion for downward departure as specific performance of the agreement. In the alternative, Kelly seeks to withdraw his guilty plea because the government failed to comply with the terms of the plea agreement. We affirm the district court's denial of Kelly's motions.

I.

Kelly was present when police officers executed a search warrant for the apartment where he was living, which the police had obtained in relation to charges against a prior occupant. During the search, officers found 64 grams of cocaine base hidden in a false-bottom can in a closet. They also found other drug paraphernalia and a number of firearms. In Kelly's bedroom, officers found $6,395 in cash, a loaded rifle, an unloaded semi-automatic handgun, and ammunition located nearby. The officers arrested Kelly, and he eventually admitted to having sold crack cocaine for the last two years. The government charged Kelly with possessing cocaine base with intent to deliver and with being a felon in possession of a firearm. See 21 U.S.C. Sec. 841(a); 18 U.S.C. Sec. 922(g)(1).

Kelly originally pled not guilty to the charges and proceeded to trial. Prior to trial, the government filed a sentencing enhancement information setting forth one of Kelly's prior felony drug convictions, which meant that Kelly faced a mandatory minimum sentence of 20 years of imprisonment. ² 21 U.S.C. Sec. 841(b)(1)(A). Following selection of the jury, Kelly decided to change his plea. Kelly pled guilty to both counts of the indictment and entered into a plea agreement wherein he promised to cooperate with the government in exchange for the government's conditional promise to move for a downward departure below the mandatory minimum 20-year sentence. Paragraph three of the plea agreement contains the following language:

There is no agreement regarding the sentence the Court may impose. There is no agreement as to fine, costs, or supervised release. The defendant has agreed to cooperate with law enforcement authorities in the investigation and prosecution of other suspects. This cooperation includes, but is not limited to, being debriefed by law enforcement agents, submitting to a polygraph examination if the government deems it appropriate, and testifying at any trial or other proceeding involving such suspects. If the defendant cooperates fully and truthfully as required by this agreement, the government will, at the time of sentencing, move for a downward departure below the 20-year mandatory minimum pursuant to 18 U.S.C. Sec. 3553(e) and Guideline Section 5K1.1. The government also agrees to make the full extent of the defendant's cooperation known to the Court. The defendant understands that the government, not the Court, will decide whether the defendant has cooperated sufficiently to warrant a motion for downward departure. The defendant also understands that there is no guarantee that the Court will grant any such motion for a downward departure. In the event the Court does not grant such a motion, the defendant may not withdraw his plea based upon that ground.

(R. at 11-12, p 3.) The plea agreement also stipulates that "a 20-year mandatory minimum penalty applies due to the defendant's prior felony drug conviction absent a downward departure for substantial assistance." (R. at 14, p 12.) At the plea hearing, the district court discussed the entire agreement in detail, and Kelly indicated that he understood the agreement and the cooperation provisions.

Prior to sentencing, it became apparent that the government had decided not to move for a departure below the statutory minimum. At the sentencing hearing, the government explained that it had given Kelly several opportunities to cooperate but that substantial assistance was not forthcoming, and therefore, the government could not in good faith move for a downward departure. (Sent. Tr. at 17-18, April 27, 1993.)

Since the government refused to move for a downward departure, Kelly made the motion himself seeking a departure pursuant to 18 U.S.C. section 3553(e) and U.S.S.G. section 5K1.1. Kelly stated that he had "cooperated" to the best of his ability and that the motion should not be withheld simply because the government decided he had not substantially assisted in any other prosecution. In the alternative, Kelly moved to withdraw his guilty plea. The district court determined that the applicable Guidelines sentencing range was between 188 and 235 months but that Kelly was subject to a mandatory minimum 20-year sentence (Sent. Tr. at 20, Apr. 27, 1993) from which the court could not depart absent a government motion pursuant to section 3553(e) (see id. at 18-19). Accordingly, the district court denied both of Kelly's motions and sentenced Kelly to the mandatory minimum of 20 years of imprisonment. Kelly appeals.

II.

On appeal, Kelly argues that the government breached the terms of the written plea agreement by refusing to move for a downward departure. When the government fails to fulfill the terms of a plea agreement, an unsatisfied defendant may seek specific performance or may seek to withdraw his plea. See Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971); United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990). "[W]hen 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, 404 U.S. at 262, 92 S.Ct. at 499. An express promise to file a motion for downward departure under 18 U.S.C. section 3553(e) or section 5K1.1 of the United States Sentencing Commission, Guidelines Manual (U.S.S.G.), would be binding on the government. See Coleman, 895 F.2d at 506.

We have said that contract law is not controlling in the context of a plea agreement, but "[c]ontract principles often provide a useful means by which to analyze the enforceability of plea agreements and ensure the defendant what is reasonably due him in the circumstances." United States v. McGovern, 822 F.2d 739, 743 (8th Cir.), cert. denied, 484 U.S. 956, 108 S.Ct. 352, 98 L.Ed.2d 377 (1987); see United States v. Vogt, 901 F.2d 100, 102 (8th Cir.1990). The contract analogy works well in the usual situation, such as this, where the government and the defendant enter into a written plea agreement that calls for some future action on the part of either the defendant or the government. When a dispute later arises over whether the parties performed pursuant to the agreed-upon terms, the court looks to familiar contract principles and gives effect to the intent of the parties as expressed in the plain language of the agreement when viewed as a whole. If the plain language is ambiguous, the district court must determine what the parties intended by the language used.

In interpreting the plea agreement, Kelly would have us draw a distinction between "cooperation" as used in the agreement and "substantial assistance" as used in 18 U.S.C. section 3553(e) and U.S.S.G. section 5K1.1. Kelly argues that the plea agreement required only "cooperation" as specifically defined in the agreement and not the "substantial assistance" which is statutorily required before a court can grant a downward-departure motion. See 18 U.S.C. Sec. 3553(e); 28 U.S.C. Sec. 994(n). We find that Kelly's narrow and restrictive reading of the cooperation requirement is simply not supported by the language used in the plea agreement, viewed as a whole.

The plea agreement specifically states that "cooperation includes, but is not limited to " being debriefed, submitting to polygraphs, and testifying (hereinafter "the cooperation phrase"). (R. at 11, p 3 (emphasis added).) This phrase does not limit the definition of "cooperation" to the acts enumerated as Kelly contends. By the express language of the cooperation phrase, the enumerated acts are a nonexhaustive list illustrating some, but not all, of the acts that might be required as "cooperation".

Additionally, the cooperation phrase cannot be isolated from the rest of the agreement. Within the same paragraph, the agreement links Kelly's "cooperation" to the "substantial assistance" requirement. The agreement states that if Kelly cooperates truthfully, the government will move for a downward departure "pursuant to 18 U.S.C. Sec. 3553(e) and Guideline Section 5K1.1." (R. at 12, p 3 (emphasis added).) Guideline section 5K1.1 requires the government to state in its motion that the defendant has provided substantial assistance. Moreover, at paragraph 12, the plea agreement specifically states that the mandatory minimum sentence will apply "absent a downward departure for substantial assistance." (R. at 14, p 12.) Thus, the agreement requires "cooperation" that amounts to "substantial assistance." Although not artfully drafted, the clear import of the language in the plea agreement viewed in its entirety is that Kelly was required to cooperate to the level of rendering substantial assistance before the government's obligation to move for a downward departure would arise. ³

Kelly argues in the alternative that...