U.S. v. Lukse

• Decision Date: 17 April 2002
• Docket Number: No. 00-6077.,No. 00-6054.,00-6054.,00-6077.
• Citation: 286 F.3d 906
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Scott LUKSE, also known as Scott Luxley (00-6054); Joshua Hight (00-6077), Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

286 F.3d 906

UNITED STATES of America, Plaintiff-Appellee, v. Scott LUKSE, also known as Scott Luxley (00-6054); Joshua Hight (00-6077), Defendants-Appellants.

No. 00-6054.

No. 00-6077.

United States Court of Appeals, Sixth Circuit.

Argued: November 14, 2001.

Decided and Filed: April 17, 2002.

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Dan R. Smith (argued and briefed), Assistant United States Attorney, Johnson City, TN, for U.S.

Edward A. Fiorella, Jr. (argued and briefed), Morrison & Fiorella, Charlotte, NC, for Scott Lukse.

Charles I. Poole (argued and briefed), Charles Poole & Associates, Sevierville, TN, for Joshua Hight.

Before: KEITH and COLE, Circuit Judges; MARBLEY, District Judge.^*

OPINION

KEITH, Circuit Judge.

In this consolidated direct appeal, the defendants Scott Lukse and Joshua Hight contend that the district court erred in not compelling the government to file motions for downward departure based on substantial assistance rendered pursuant to their plea agreements. Although we find that the government retained full discretion to determine whether the defendants did provide substantial assistance, we find that new sentencing hearings are warranted because the government did not meet its burden of showing that the Defendants breached their plea agreements. Therefore, we REVERSE the district courts' decisions and REMAND for new sentencing hearings commensurate with this opinion.

I.

The defendants were two of thirteen individuals indicted by a grand jury in the Eastern District of Tennessee on December 15, 1998. Each Appellant was indicted on one count of conspiracy to distribute and possess with the intent to distribute marijuana, a schedule one controlled substance, in violation of 21 U.S.C. § 841(a)(1). On March 13, 2000, Lukse pled guilty pursuant to a written plea agreement. On June 12, 2000, Hight also pled guilty pursuant to a written plea agreement.

The defendants' plea agreements were identical. Both required the government to file a downward departure motion if, in the sole discretion of the government, the defendants provided them with substantial assistance. The agreements read in relevant part:

At the time of sentencing, the United States will bring to the court's attention, the nature, extent, and value of the Defendant's cooperation. This information will be provided to the court so that it may be considered in determining a fair and appropriate sentence under the facts of the case. If, in the sole discretion of the United States, the Defendant provides substantial assistance in the investigation or prosecution of another person who has committed an offense, the United States will make a motion for downward departure pursuant to U.S.S.G. § 5K1.1 of the Sentencing Guidelines or 18 U.S.C. § 3553(e), or both, with the Government allowing the District Court to impose a sentence which may fall below the minimum mandatory term of imprisonment or below the sentencing guidelines.

It is undisputed that both Appellants provided the government with some assistance. The extent of Lukse's assistance was detailed to the sentencing court in a letter dated July 20, 2000, from Special Agent David Ramsey of the North Carolina State Bureau of Investigation. Lukse's cooperation led to the arrest and indictment of at least three individuals whom the government would not have known about absent his help.

Similarly, Hight provided the government with important information previously unknown to them. Hight provided a Drug Enforcement Agency Special Agent with the names and involvement of other individuals who were involved in the conspiracy to sell and deliver marijuana for which he pled guilty.

After their pleas and their aforementioned cooperation with the government, but prior to their sentencing hearing, both men were seen smoking a marijuana joint in jail. The Appellants subsequently admitted this to the government. As a result, the government notified the Appellants' lawyers that they would not file motions for downward departure, claiming that the Appellants had lost their credibility and usefulness as trial witnesses.

The Appellants separately moved the district court to compel the government to file downward departure motions. The district court denied the motions, reasoning that the government had retained complete discretion to determine whether substantial assistance had been rendered. Citing our opinion in United States v. Benjamin, 138 F.3d 1069, 1073 (6th Cir.1998), the district court concluded that it could only review the government's refusal to file the motions if that decision was motivated by unconstitutional considerations, which had not been alleged. Thereafter, Lukse was sentenced to 120 months and Hight to seventy-five months in the custody of the United States Bureau of Prisons.

Both Appellants timely filed their appeal and we consolidated the cases for review.

II.

Plea agreements are contractual in nature. In interpreting and enforcing them, this Court uses traditional principles of contract law. See United States v. Robison, 924 F.2d 612, 613 (6th Cir.1991). The content of a plea agreement and what the parties agreed to is a question of fact for the district court that is reviewed for clear error. See Baker v. United States, 781 F.2d 85 (6th Cir.1986). Before declining to honor a term in a plea agreement, the government bears the burden of proving a defendant's breach by a preponderance of the evidence. See Benjamin, 138 F.3d at 1073.

Section 5K1.1 of the Sentencing Guidelines allows a sentencing court to depart from the guidelines if the government files a motion indicating that a defendant has provided them with substantial assistance in the investigation or prosecution of another person who has committed a crime. See U.S.S.G. § 5K1.1. In many plea agreements, the government refers to the possibility of a § 5K1.1 motion but ultimately reserves unilateral discretion to determine whether the motion is appropriate. In such a situation, this Circuit has ruled that courts may only review the government's refusal to file the motion to determine whether its decision was based on unconstitutional motives. See Benjamin, 138 F.3d at 1073. While some Circuits hold otherwise, we have clearly held that reviewing decisions for bad faith is not allowed. See U.S. v. Moore, 225 F.3d 637 (6th Cir.2000).

It is equally clear, however, that our inability to review the Government's decision to file a substantial assistance motion for bad faith does not allow the government to openly breach plea agreements. See Mabry v. Johnson, 467 U.S. 504, 509, 104 S.Ct. 2543, 81 L.Ed.2d 437 (1984) ("when the prosecution breaches its promise with respect to an executed plea agreement, the defendant pleads guilty on a false premise, and hence his conviction cannot stand[.]").¹ As the Supreme Court stated in Mabry, "`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.'" Id. at 509, 104 S.Ct. 2543 (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971)).

III.

The Appellants concede that the government retained unilateral discretion to determine whether substantial assistance had been rendered. However, citing our decision in Benjamin, they argue that once the government had determined that substantial assistance had been rendered, the government was required to file the motions for downward departure. At this point, argue the Appellants, the government had no discretion.

Also citing our decision in Benjamin, the government argues that because it retained sole discretion to determine whether substantial assistance had been rendered, their refusal to file motions for downward departure is reviewable only for unconstitutional motives.

This dispute over the application of Benjamin warrants a review of that case and our subsequent decision in United States v. Moore, 225 F.3d 637 (6th Cir.2000).

IV.

In Benjamin, one of the defendant's plea agreement required the government to make a motion for downward departure if he rendered substantial assistance. Benjamin, 138 F.3d at 1074. The relevant language in the agreement read: "if the defendant fully complies with all his obligations, as defined and described in this Plea Agreement, the government will, at the time of sentencing, move for a four-level reduction for substantial assistance." Id. Although we hypothesized in Benjamin that had the government retained complete discretion to determine whether the substantial assistance standard had been met, we would only be able to review that decision for motivations that were unconstitutional, our decision in that case did not rest on such a principle. Id. at 1073. Ultimately, we concluded that the government had not retained the discretion to determine whether the substantial assistance standard had been met. Id. at 1074. We then stated that when the government does not retain sole discretion to determine whether substantial assistance has been rendered, they can only refuse to file a downward departure motion if they can prove by a preponderance of the evidence that the defendant breached the plea agreement. Id. In Benjamin, the district court had specifically stated that the government had not proved the defendant's breach by a preponderance of the evidence. Id. Therefore, we held that the government breached the plea agreement. Id.

It was only in United States v. Moore, 225 F.3d 637 (6th Cir.2000), that we firmly held that "when a plea agreement allocates complete discretion to the government to consider whether a substantial assistance motion should be filed, we may only review the government's decision for unconstitutional motives." Id. at 641. In Moore, the government clearly retained sole discretion to determine whether they would file a § 5K1.1 motion for substantial assistance rendered. Id. When they declined to do so, the defendant-appell...