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United States v. E.F.

United States Court of Appeals, Tenth Circuit

April 2, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
v.
E.F., Defendant-Appellant.

          Before TYMKOVICH, Chief Judge, O'BRIEN and MATHESON, Circuit Judges.

          TYMKOVICH, CHIEF JUDGE.

         I. Background

         E.F. 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 Guidelines.

         As a 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 assistance.

         The 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.

         As we 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.

         II. Analysis

         E.F. 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.

         A. Application of Doe

         Courts "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.

         Under 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 agreement.

         But 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.

         At a 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 ...


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