Appeal from the United States District Court for the District of Columbia (No. 97cr00301–01)
Before: Ginsburg, Chief Judge, and Sentelle, Circuit
Judge, and Williams, Senior Circuit Judge.
The opinion of the court was delivered by: Sentelle, Circuit Judge
Opinion for the Court filed by Circuit Judge SENTELLE.
Bills of costs must be filed within 14 days after entry of judgment. The court looks with disfavor upon motions to file bills of costs out of time.
Appellant appeals from a judgment of the District Court sentencing him to 121 months on his bargained plea of guilty to possessing with intent to distribute cocaine. On appeal, he contends that the government breached his plea agreement by failing to protect him and his family from harm while he cooperated in ongoing investigations, and by failing to inform the Departure Guideline Committee (DGC) and the sentencing court of the extent of his cooperation. Because we find no reversible error, we affirm the judgment of the District Court.
On July 24, 1997, a federal grand jury in the District of Columbia charged appellant in a four-count indictment with possession with intent to distribute fifty grams or more of cocaine base (in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(A)(iii)), possession of a firearm by a convicted felon (in violation of 18 U.S.C. § 922(g)(1)), possession of ammunition by a convicted felon (same provision), and possession of a firearm with an obliterated, removed, and altered serial number (in violation of 18 U.S.C. § 922(k)). On September 30, 1997, pursuant to a written plea agreement, appellant entered a guilty plea to the first count of the indictment, charging possession with intent to distribute. Among the terms of the agreement, in addition to the obvious exchange of the plea of guilty to one count in return for the dismissal of others, appellant agreed to cooperate with the government. In return, the government agreed that if the departure committee of the United States Attorneys' Office determined that the appellant had provided ''substantial assistance,'' it would file a motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1 permitting the court to depart below the otherwise applicable Guideline range and/or mandatory minimum sentence. The government also agreed that it would ''take any and all necessary reasonable measures to protect [appellant's] and his family's safety,'' possibly ''includ[ing] the obtaining of a section 8 voucher to allow [appellant's] family to [sic] other public assistance housing.''
Over the next four-year period, the District Court held a series of status conferences in which the parties informed the court of the progress of appellant's cooperation. While some of these reports were favorable, others displayed difficulties of varying severity and revealed the government's varying levels of satisfaction with appellant's cooperation. Finally, on November 13, 2001, the government filed a motion advising the court of the defendant's failure to cooperate, declaring that the appellant had ''agreed to cooperate with the government by providing information and participating in covert operations'' involving a known and notorious drug gang. The government's motion further stated that defendant had failed ''to comply with the terms of his plea agreement to cooperate,'' and that he was ''not entitled to a downward departure from the Guidelines.'' Following the filing of the motion, the parties appeared for sentencing on November 15, 2001. The prosecutor advised the court that consistent with the government's November 13 filing, the United States would not be filing a motion for departure under U.S.S.G. § 5K1.1 and that the court should proceed to sentencing in accordance with the Guideline range.
Defendant and his counsel made no objection to the government's description of appellant's failure to cooperate and did not dispute the government's determination that no 5K1.1 departure was warranted. The court sentenced appellant to a term of confinement of 121 months, the bottom of the Guideline range, followed by a five-year period of supervised release.
Despite the silence of appellant on the subject in the District Court, he contends on appeal that the United States breached the plea agreement in two respects and that he is therefore entitled to resentencing. He first contends that the government failed in its obligation under the bargain to protect him and his family. Second, he contends that the government breached the plea agreement by failing to inform the DGC and the District Court of cooperation he allegedly provided to the government. Although he concedes that he was unable to do everything that the government asked of him, he contends that the committee would have approved a substantial assistance downward departure if it had been ''accurately informed'' of his cooperation.
Before determining the merits of appellant's argument, we must first determine the appropriate standard of review. Appellant, who prays for a remand with an order for specific performance of his plea bargain, contends that in an appeal relying on the breach of a plea agreement, the Court of Appeals should consider the questions de novo. Appellant's argument for this standard of review rests primarily on three cases. United States v. Jones, 58 F.3d 688 (D.C. Cir.), cert. denied, 516 U.S. 970 (1995); United States v. Wolff, 127 F.3d 84 (D.C. Cir. 1997), cert. denied, 524 U.S. 929 (1998); and Santobello v. New York, 404 U.S. 257 (1971). Jones holds that ''the interpretation of a plea agreement's terms is a pure matter of law.'' Id. at 691. In Wolff, appellant contends that we remanded the case for resentencing and specific performance based on a breach of plea agreement by the government where the claim of breach was raised for the first time on appeal. In Santobello, the Supreme Court directed 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.'' Id. at 262. Each of these propositions is in itself unassailable. However, taken together, they do not inexorably lead to appellant's conclusion that we should consider this matter de novo and grant him the relief sought.
The Jones Court, in the quoted passage, was not considering the standard of review to apply to a claim of breached plea agreement raised for the first time on appeal. Rather, that Court was delineating the standard it would apply in construing the terms of a plea agreement, the breach of which had been asserted, argued, and considered at the District Court level. 58 F.3d at 690. In Wolff, concededly, we granted a remand for specific performance of a plea bargain based on a breach not asserted in the District Court. However, Wolff involved an extraordinary circumstance not present in the case before us. In Wolff, the government, exercising what we described as ''commendable candor,'' 127 F.3d at 86, confessed its breach of the plea agreement in the trial court and joined in the petition for remand. The only issue before ...