TYMKOVICH, Chief Judge, O'BRIEN and MATHESON, Circuit
TYMKOVICH, CHIEF JUDGE.
pleaded guilty to a number of federal offenses pursuant to a
plea agreement. Under the terms of the plea agreement, the
government agreed that it would recommend a sentence below
the one recommended by the United States Sentencing
result of that agreement, the district court significantly
reduced E.F.'s advisory guidelines range to approximately
half the term of imprisonment recommended by the Guidelines.
E.F. was ultimately sentenced to the mandatory minimum
sentence. The district court noted it would have preferred to
sentence E.F. to a lesser sentence, but it was unable to do
so in light of the government's refusal to file a motion
for a further reduction pursuant to 18 U.S.C. § 3553(e),
which authorizes the district court to impose a sentence
below the statutory mandatory minimum for substantial
district court first considered whether United States v.
Doe, 865 F.3d 1295 (10th Cir. 2017), applies. In
Doe, we held that in certain circumstances, the
government's decision not to file a
substantial-assistance motion pursuant to USSG § 5K1.1
is subject to good-faith review. The court concluded that
while Doe applies, E.F. failed to satisfy the
Doe requirements that would trigger good-faith
review by the district court. Thus, the plea agreement was
not subject to good-faith review.
explain, we agree with the district court's analysis
under Doe and affirm its conclusion that the
government's decision not to file a § 3553(e) motion
is not subject to good-faith review.
raises three arguments for reversal. First, E.F. contends
that the government breached the covenant of good faith and
fair dealing implied in the plea agreement when it refused to
file a § 3553(e) motion. Similarly, E.F. contends the
government's refusal was not rationally related to a
legitimate government end and that enforcing the plea
agreement would result in a miscarriage of justice. Finally,
E.F. argues that the sentence was substantively unreasonable.
Application of Doe
"review de novo whether the [g]overnment has breached a
plea agreement." United States v.
Rodriguez-Rivera, 518 F.3d 1208, 1212 (10th Cir. 2008).
While the government initially argued the standard of review
is plain error because E.F. did not sufficiently allege a
breach of the plea agreement in the district court, the
government did not reassert this argument following the
district court's decision to apply Doe.
Furthermore, as discussed below, E.F. sufficiently raised the
good-faith issue, and we therefore review de novo the
district court's analysis under Doe.
the terms of the plea agreement in Doe, the
government was obligated to exercise its discretion in
determining whether to file a substantial-assistance motion
as permitted by USSG § 5K1.1 or § 3553(e). The
government exercised its discretion and declined to file
either motion. But the defendant argued the government failed
to exercise its discretion in good faith, thus raising the
question of whether the government's discretionary
decisions can be reviewed for breach of contract. We agreed a
duty of good faith applied to plea agreements. To be entitled
to good-faith review in district court, (1) the defendant
must first allege that the government acted in bad faith; (2)
the government can then rebut the allegation by providing
justifications for its refusal to file the motion; and (3)
the defendant must then produce evidence "giving reason
to question the justification" advanced by the
government. Doe, 865 F.3d at 1300. If the defendant
succeeds at step three, the court will proceed to a merits
determination as to whether the government breached the plea
this case is different from Doe because it only
involves the government's discretionary decision to
refuse to file a substantial-assistance motion under §
3553(e). While the government here refused to file a
substantial assistance motion pursuant to the statute, it did
move for a sentence reduction pursuant to § 5K1.1 of the
Guidelines. E.F. argues the government should have moved for
both a § 5K1.1 reduction and a § 3553(e) reduction.
minimum, Doe stands for the proposition that if a
prosecutor files no motion at all for substantial assistance,
then the district court may conduct good-faith review if
certain conditions are met. E.F. argues Doe stands
for more-Doe means prosecutorial discretion to file
neither, either, or ...