UNITED STATES COURT OF APPEALS For the Fifth Circuit

___________________________

No. 92-1357 ___________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

MICHAEL WATSON,

Defendant-Appellant.

* * * * * * * * * *

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No. 92-1509 _________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

LENNOX CAMPBELL, Defendant-Appellant.

___________________________________________________

Appeals from the United States District Court for the Northern District of Texas ____________________________________________________ (April 5, 1993)

Before JOLLY, DAVIS, and JONES, Circuit Judges.

DAVIS, Circuit Judge:

Lennox Campbell (Campbell) pleaded guilty to aiding and

abetting the distribution of cocaine, in violation of 21 U.S.C. §

841(a)(1), and 18 U.S.C. § 2. He was sentenced to 211 months imprisonment and five years supervised release. Michael Watson

(Watson) pleaded guilty to aiding and abetting the distribution of

cocaine base, in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C.

§ 2. He was sentenced to 121 months imprisonment, 5 years

supervised release, and a fine of $5,000.00. Campbell appeals both

the denial of his motion to withdraw his plea of guilty and his

sentence. Watson appeals his sentence. We consolidated these

appeals because they involve codefendants and similar issues. We

affirm Campbell's conviction and sentence. We vacate Watson's

sentence and remand for resentencing.

I.

From May through July of 1991, undercover officers of the

Dallas Police Department conducted an investigation that involved,

at various times, Campbell, Watson, William Lonnie Calahan

(Calahan), Eric Wright (Wright) and Patrick B. Green (Green). In

July of 1991, all five participated in the sale of approximately

250 grams of cocaine powder to the undercover officers. All five

were arrested at the site of the sale, the Redbird Mall in Dallas.

In August of l991, a grand jury handed down a four count indictment

against the defendants. Campbell was named in counts one and four.

Watson was named in all four counts.

Campbell was released on bail in November of 1991. While

Campbell was out on bail, an organized crime drug task force was

investigating a number of individuals in Brevard County, Florida,

near Orlando. William Thomas Ray (Ray), an agent with the Bureau

of Alcohol, Tobacco and Firearms, and case agent for the

prosecution of Campbell and his co-defendants, learned about this

investigation in late December. According to Agent Ray, "they

communicated to us in late December that . . . they had a dial

impulse recorder attached to the phone of the suspects in Florida,"

and "they wanted us to get some subscriber information on the

persons' numbers that were being called in the Dallas area."

In mid-January, Agent Ray's office served a subpoena on

Southwestern Bell and discovered Campbell's home phone number among

those listed. About that time, the Florida authorities told Agent

Ray's office that Claudette Hubbard (Hubbard), a cousin of

Campbell's, was a target of the investigation. Agent Ray's office

suspected a connection between Campbell and the Florida drug

investigation.

On January 23, 1992, Campbell pleaded guilty to count four of

the indictment in exchange for being dropped from count one. A

provision of that agreement provided that:

Campbell shall cooperate with the Government, by giving truthful and complete information and/or testimony concerning Campbell's participation in and knowledge of criminal activities. The Government agrees that if the defendant complies with section 5K1.1 of the sentencing guidelines, the Government will file a motion with the Court asking for a downward departure from the applicable guideline range.1

St. Clair Theodore (Theodore), of the United States Attorney's

Office for the Northern District of Texas, was the lead prosecutor

for the case against Campbell. Both Agent Ray and Mr. Theodore

U.S.S.G. § 5K1.1 provides:

Upon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines.

testified that they understood the plea agreement to imply a grant

of use immunity for the information Campbell would reveal. The

scope of the immunity had to be worked out, and Mr. Theodore asked

Campbell to give a proffer of what he intended to tell the

government. On the day the plea agreement was reached, Campbell

mentioned his knowledge about drug activities in Houston and New

York. He did not mention knowledge of drug activities in Florida.

In the latter part of February, Agent Ray told Mr. Theodore

about the Florida drug investigation. Because of the "new criminal

offense that [Campbell] was committing at the time," Mr. Theodore

decided not to grant Campbell use immunity. Mr. Theodore further

testified that "I could not jeopardize that investigation and [give

Campbell's attorney the] information that I had received about his

client." So Mr. Theodore "did not relay any further information"

to Campbell's lawyer and delayed working on the use immunity

agreement.

Shortly thereafter, in a letter dated February 27, 1992,

Campbell gave his proffer. He said that he would tell the

government information about drug transactions in Dallas, Houston,

and the State of New York. Again Campbell did not allege that he

could provide information about operations in Florida.

On March 10, 1992, the government received its first concrete

information that Campbell was involved in an ongoing drug offense.

The Florida authorities intercepted and recorded a phone

conversation between Campbell and Hubbard in which the two

discussed a drug deal. Campbell was subsequently indicted in the

Middle District of Florida on charges arising out of the Florida

investigation.

The government never scheduled a debriefing meeting with

Campbell. Nor did it file a 5K1.1 motion in Campbell's behalf.

Campbell filed a motion to withdraw his guilty plea because the

government had failed to allow him to perform his part of the plea

agreement.

At a hearing on the motion, Campbell said that he spoke with

Claudette Hubbard "for the purpose of getting information to pass

it to the government." To this, he added the somewhat implausible

story that his current roommate, Leunford Brown (Brown), had

authorized him to set up drug deals for the government. According

to Campbell, Brown had shown him documentation that he was a police

officer. But this occurred three years earlier. Thus, Campbell

testified with respect to the March 10 call:

Campbell: Brown waked me up and asked me to call Claudette Hubbard and see if she would be interested to come here and buy some drugs and I did.

Q: So Leunford Brown was asking you to make the call on behalf of him for his drug deal with Claudette?

Campbell: Or to get her to come here to buy drugs so that he could bust her. That was his words to me.

Agent Ray testified that he was not aware that anyone in the

government had authorized Campbell to work for the government or

make deals on the government's behalf. Mr. Theodore testified

that, on January 23, 1992, he fully intended to comply with the

agreement.

The district court overruled Campbell's motion for leave to

withdraw the plea of guilty. In so doing, it found that Campbell

gave "preposterous" testimony and "lied" under oath. The court

further found that the government had "not engaged in any

misconduct." Campbell was later acquitted of the charges arising

out of the Florida investigation.

The facts surrounding Watson's appeal are not as complex. He

pleaded guilty to count three of the indictment, in exchange for

the charges in counts one, two, and four being dropped. His plea

agreement provided:

WATSON shall cooperate with the Government, by giving truthful and complete information and/or testimony during the trial of any codefendant concerning WATSON'S and codefendant CAMPBELL, WRIGHT, GREEN and CALAHAN'S participation in and knowledge of criminal activities. The Government agrees that if the defendant complies with section 5K1.1 of the sentencing guidelines, the Government will file a motion with the Court asking for a downward departure from the applicable guideline range. . . . . The Government shall advise the Court, via the Probation Department, of the extent of CALAHAN'S [sic] cooperation.

The government interviewed Watson for Green's trial. But it

did not file a § 5K1.1 motion for downward departure in Watson's

behalf. At the sentencing hearing, Watson's attorney raised this

issue. He told the district court that he had requested that the

government file the motion, that the government had declined

without explanation, to do so and that it was his understanding

that they would file such a motion as part of the plea agreement.

Watson testified at the hearing that he had answered the

government's questions, and that he had cooperated with them and

stood ready to cooperate with them at all times. He stated that he

understood that the § 5K1.1 motion of the government recommending

downward departure was dependent on his cooperation. The

government did not make any statements in response. The district

court did not respond to Watson's counsel's argument, and went on

to sentence Watson within the guidelines as calculated by the

Probation Department in the Presentence Report. (PSR).

II.

A.

Campbell contends that he was induced to plead guilty by the

government's promise to move for downward departure if he

cooperated. He further contends that he stood ready at all times

to comply with his part of the agreement. However, he argues, the

government breached the agreement by not granting him immunity or

seeking his assistance. Thus, contends Campbell, his guilty plea

is void because it was involuntary. The government argues that it

did not breach the agreement because Campbell did not satisfy the

conditions upon which its alleged obligations were predicated.

Specifically, the government argues that Campbell withheld

knowledge of the drug deal he was negotiating in Florida.

The district court held a hearing on this issue. Afterwards,

it determined that Campbell was "not entitled to withdraw his plea

agreement," and that "[t]he government ha[d] not engaged in any

misconduct." We interpret this to be a determination that the

government did not breach the plea agreement when it refused to

submit a 5K1.1 motion on Campbell's behalf.

Whether the government's conduct violated the terms of the

plea agreement is a question of law. United States v. Valencia,

___ F.2d ___, ___, 1993 WL 46576 at * 3 (5th Cir. 1993). Campbell

bore the burden of proving the underlying facts establishing a

breach by a preponderance of the evidence. United States v.

Conner, 930 F.2d 1073, 1076 (4th Cir.), cert. denied, 112 S.Ct. 420

(1991); United States v. Hurtado, 846 F.2d 995, 997 (5th Cir.),

cert. denied, 488 U.S. 863 (1988) (defendant seeking withdrawal of

a guilty plea under Fed. R. Crim. P. 32(d) has burden of proving

that withdrawal is justified); But see United States v. Tilley, 964 F.2d 66, 71 (1st Cir. 1992). "In determining whether the terms of

a plea agreement have been violated, the court must determine

whether the government's conduct is consistent with the parties'

reasonable understanding of the agreement." Valencia, __ F.2d at

__, 1993 WL 46576 at * 3.

Our review of the record persuades us that the district

court's determination is correct. The plea agreement conditioned

the government's obligation to submit a 5K1.1 motion on Campbell's

"compl[iance] with section 5K1.1." Section 5K1.1 allows the court

to depart from the guidelines if the government submits a motion

"stating that the defendant has provided substantial assistance in

the investigation or prosecution of another person who has

committed an offense." So at a minimum, the plea agreement

conditioned the government's obligation to submit a 5K1.1 motion on

Campbell's "substantial assistance" in the investigation or

prosecution of another criminal offender. We have indicated that

standing ready and willing to cooperate with the government might

constitute "substantial assistance." United States v. Melton, 930 F.2d 1096, 1098-99 (5th Cir. 1991).

However, instead of substantially assisting the government's

investigation and prosecution of criminal offenders, Campbell

worked against those efforts by engaging in new drug offenses.

Moreover, Campbell, by engaging in criminal activities, made

himself the target of a new investigation. This fact made it

difficult for prosecuting authorities in Dallas to debrief Campbell

about his drug activities without alerting him and others to the

Florida investigation. For example, the government would have been

concerned about negotiating the scope of use immunity without

disclosing to him that they knew that he and others were involved

in ongoing criminal activity.

Campbell did not merely fail to satisfy the "substantial

assistance" condition of his plea agreement. The agreement also

conditioned the government's obligation to submit a 5K1.1 motion on

Campbell "giving truthful and complete information" about

Campbell's "participation in and knowledge of criminal activities."

However, Campbell concealed information about his participation in

and knowledge of criminal activities. When he entered into the

plea agreement, Campbell mentioned his ability to give information

about drug activity in Texas and New York, but made no mention of

his ongoing activities in Florida. Similarly, in his proffer

letter, Campbell expressed willingness to give information about

drug activities in Texas and New York, but again concealed the fact

that he was involved in ongoing criminal activity in Florida.

Campbell continued this dishonest behavior by testifying that he

made the suspect phone calls in order to gather more information

for the government. Not only does this conduct show that Campbell

was not forthcoming with the government, but it belies his efforts

to convince this Court that he stood ready and willing to discuss

his criminal activities in Florida.

Campbell argues that his acquittal of the charges arising out

of the Florida investigation exonerates him of any criminal

wrongdoing. However, Campbell bears the burden of proving that the

government breached his plea agreement. So the acquittal is not

determinative.

Because Campbell failed to satisfy the "substantial

assistance" and "truthful" information conditions of his plea

agreement, the plea agreement did not obligate the government to

submit a 5K1.1 motion in Campbell's behalf. Moreover, Campbell has

not shown that any other source of authority obligated the

government to submit a 5K1.1 motion on his behalf. See Wade v.

United States, 112 S.Ct. 1840, 1843, 118 L.Ed.2d 524, 531 (1992);

United States v. Urbani, 967 F.2d 106, 109 (5th Cir. 1992). And a

district court may not downwardly depart under § 5K1.1 unless the

government makes a motion to that effect. Wade, 118 L.Ed.2d at 530. So Campbell is not entitled to the relief that he seeks.

In his reply brief, Campbell contends that the district court

abused its discretion in denying his motion for leave to withdraw

his guilty plea. A district court has broad discretion in deciding

whether to allow a defendant to withdraw a guilty plea. Fed. R.

Crim. P. 32(d); United States v. Rinard, 956 F.2d 85, 88 (5th Cir.

1992). This decision calls for consideration of a number of

factors, including whether (1) the defendant has asserted his

innocence; (2) the government would be prejudiced; (3) the

defendant has delayed in filing his motion; (4) withdrawal would

substantially inconvenience the court; (5) close assistance of

counsel was present; (6) the original plea was knowing and

voluntary; and (7) the withdrawal would waste judicial resources.

Rinard, 956 F.2d at 88 & n. 13. None of these factors weigh in

Campbell's favor. In particular, we note that Campbell made no

claim of innocence in his motion for leave to withdraw his guilty

plea;2 he had assistance of counsel when he pled guilty; and his

plea was knowing and voluntary. We find that the district court

did not abuse its broad discretion in denying Campbell's motion to

withdraw his guilty plea.

B.

Under U.S.S.G. § 3B1.1(a), the district court increased

Campbell's base offense level by four levels for his organizing

role in the offense. Campbell does not dispute that five

individuals were involved, but contends that the evidence was

insufficient to support the district court's finding that he was an

organizer or leader. We disagree.

Campbell argues that he has consistently asserted his innocence, pointing out that he originally pled not guilty, and that he maintained his innocence at the sentencing hearing and in interviews with the Probation Department. However his brief in support of his motion for leave to withdraw his plea of guilty cited only the government's refusal to file a 5K1.1 motion in his behalf. Moreover, these protestations contradict his assertions that he is entitled to a reduction in his sentence for acceptance of responsibility in light of his guilty plea and "truthful admission of his involvement in the offense and related conduct."

We review a district court's finding that a defendant was an

organizer or leader under the clearly erroneous standard. United

States v. Chavez, 947 F.2d 742, 746 (5th Cir. 1991). Among the

considerations suggested by § 3B1.1(c)'s commentary are decision

making authority, planning, organizing, recruitment of accomplices,

the scope of the illegal activity, and authority over others.

U.S.S.G. § 3B1.1, Application Note 3.

Detective Benjamin, of the Dallas Police Department, testified

that, in July of 1991, he met with Calahan and Campbell at a Dallas

Stop 'N Go and attempted to set up a 5-ounce cocaine buy. Calahan

introduced Campbell as his stepfather and said that Campbell had

supplied two co-defendants from whom Detective Benjamin had

previously purchased cocaine. After Calahan and Detective Benjamin

agreed on a deal, a meeting place, and a time, Campbell nodded in

agreement.

Detective Benjamin also testified that he spoke with LeRoy

White (White), a confidential informant who had since died.

According to Detective Benjamin's testimony, White mentioned that

there was a drug organization that sold "weight," i.e., ounces and

above. White offered to introduce Detective Benjamin to those

people, from whom Detective Benjamin could make "multiple buys."

Among those people, White mentioned Campbell as someone who "could

get me what I needed."

Detective Kenneth LeCesne (LeCesne), the Dallas Police

Department Officer who supervised the investigation of Campbell and

his co-defendants, testified about Campbell's role in the drug sale

that precipitated Campbell's arrest. According to Officer LeCesne,

Campbell walked into the office of a beeper company and stood in

the window, surveying the Redbird Mall's parking lot. Watson drove

around the parking lot on a motorcycle. When he finished, he gave

a "thumbs up" signal to Campbell. Campbell then walked out to

where Watson had parked the motorcycle. He looked at a car driven

by Calahan, and motioned with his head to where Detective Benjamin

was parked. Calahan then sold the cocaine to Detective Benjamin.

Campbell testified that he was not organizing Calahan, Wright,

Watson, and Green. He denied being present at the meeting at the

Stop 'N Go. He said that he went to the mall to pay some phone

bills.

The district court found that Officers Benjamin and LeCesne

were "telling the truth." The court found that Campbell's

testimony was not credible. The above evidence adequately supports

the district court's determination that Campbell was an organizer

or leader of the offense. See United States v. Kinder, 946 F.2d 362, 369 (5th Cir. 1991), cert. denied, 112 S.Ct. 2290 (1992).

Campbell's reliance on United States v. Sostre, 967 F.2d 728

(1st Cir. 1992), is misplaced. In Sostre, the First Circuit

characterized the defendant's involvement in a cocaine distribution

conspiracy as that of a "steerer," a person who "directs buyers to

sellers in circumstances in which the sellers attempt to conceal

themselves from casual observation." Sostre, 967 F.2d at 733. It

then reversed a district court determination that the defendant had

acted as a supervisor in the conspiracy, noting that he had no

control over the cocaine, was not the principal with whom the

government transacted the sale, needed the approval of codefendants

before making representations to buyers, and did not control other

codefendants. Sostre, 967 F.2d at 733.

Campbell made no such showing. In fact, the district court

heard evidence that cut in the opposite direction. For example,

the district court heard testimony that Campbell had supplied the

cocaine for several deals, that he was in a position to approve or

disapprove a transaction negotiated by his codefendant Calahan, and

that he directed the execution of the cocaine sale at the Redbird

Mall. The district court did not clearly err in increasing

Campbell's base offense level for his organizing role in the

offense.

C.

The district court refused to downwardly adjust Campbell's

base offense level two levels under U.S.S.G. § 3E1.1(c) for

acceptance of responsibility. Campbell argues that he was entitled

to the downward adjustment. This argument has no merit.

A defendant bears the burden of proving to the district court

that he is entitled to the downward adjustment. Kinder, 946 F.2d at 367. We review a district court's acceptance of responsibility

determination under a standard of review "even more deferential

than a pure clearly erroneous standard." Kinder, 946 F.2d at 367.

The district court refused to credit Campbell's testimony that

he went to the mall only to "pay some bills." Campbell's attempt

to minimize or deny involvement in the offense supports the

district court's refusal to grant a two level reduction for

acceptance of responsibility. See United States v. Lara, 975 F.2d 1120, 1129 (5th Cir. 1992); United States v. Brigman, 953 F.2d 906,

909 (5th Cir. 1992) ("A defendant's coyness and lack of candor

demonstrate an inadequate acceptance of responsibility.").

III.

A.

Watson argues that the Government breached its plea agreement

and that he is entitled to specific performance of the agreement.

He asks to be resentenced in front of a different judge with the

benefit of the government's § 5K1.1 motion. He requests a hearing

for the district court to determine the extent of his cooperation.

The government argues that it did not breach the plea

agreement because Watson did not give truthful and complete

information regarding his involvement in the charges against him.

The government also argues that the district court is not required

to hold a hearing on the extent of Watson's cooperation because

Watson has not alleged that the government refused to move for a

downward departure for an illegal reason.

The government offered no response to refute Watson's evidence

that he fully cooperated with the government as required by the

plea agreement. Also, the district court did not make a finding on

whether the government breached its plea agreement with Watson.

Therefore, we must remand for a determination on that issue. If

the district court finds that the government breached the plea

agreement, we must also decide whether Watson is entitled to

specific performance of the plea agreement.

In support of his argument that he is entitled to specific

performance of the plea agreement, Watson relies on our decision in

United States v. Melton, 930 F.2d 1096 (5th Cir. 1991). In Melton,

we held that a cover letter, in which the government stated that it

would recommend departure based upon defendant's full and complete

debriefing and substantial assistance to the government, was part

of the plea agreement. Melton, 930 F.2d at 1098. We also said

that if the defendant, "in reliance on the letter, accepted the

government's offer and did his part, or stood ready to perform but

was unable to do so because the government had no further need or

opted not to use him, the government [was] obliged to move for a

downward departure." Melton, 930 F.2d at 1098-99.

The government contends that the recent Supreme Court decision

in Wade v. United States, 112 S.Ct. 1840, 118 L.Ed.2d 524 (1992),

undercuts Melton's reasoning to the point that Melton should not be

followed. This issue was raised in United States v. Ore, No. 91-

2888 at 8 (5th Cir. 1992) (unpublished), but we did not decide it

at that time. In Wade, the Supreme Court held that a district

court may not downwardly depart under § 5K1.1 unless the government

makes a motion to that effect. Wade, 118 L.Ed.2d 530. In

addition, it held that § 5K1.1 and its corresponding statute, 18

U.S.C. § 3553(e) gave the government "a power, not a duty," to file

such a motion. Wade, 118 L.Ed.2d at 531. The Court concluded that

"a claim that a defendant merely provided substantial assistance

will not entitle a defendant to a remedy or even to discovery or an

evidentiary hearing." Wade, 118 L.Ed.2d at 531. A district court

may review the government's exercise of discretion in this area

only on the same basis as other discretionary decisions by a

prosecutor--district courts may grant relief if they find that the

refusal was based on an unconstitutional motive such as the

defendant's race or religion. Wade, 118 L.Ed.2d at 531.

The crucial element in this case and in Melton, which was not

present in Wade, is the existence of a plea bargain in which the

government bargained away its discretion to not submit a § 5K1.1

motion. See United States v. Wade, 936 F.2d 169, 170 (4th Cir.

1991).3 The facts of today's case are more consistent with

Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427, 433 (1971). In Santobello, the Supreme Court held that

"[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. Implicit in this holding is the fact

that the government may bargain away its discretion. Santobello,

404 U.S. at 262.

We choose to harmonize Wade and Santobello in the manner

suggested by the Seventh Circuit. In United States v. Burrell, 963 F.2d 976, 985 (7th Cir.), cert. denied, 113 S.Ct. 357 (1992), the

Seventh Circuit said that "a prosecutor's power to make or withhold

The plea agreement in this case is unusual for its lack of language giving the government the unfettered discretion to determine whether it would submit a § 5K1.1 motion in the defendants behalf. For example, the plea agreement in Urbani, 967 F.2d at 107 & n. 2, "unequivocally disclaimed" any obligation by the government to file a § 5K1.1 motion. At oral argument, counsel for the government acknowledged that omission of such language was an oversight in this case.

a § 5K1.1 motion is a form of prosecutorial discretion which is not

reviewable for arbitrariness." However, it continued:

[I]f a prosecutor promises a defendant to make a § 5K1.1 motion in exchange for a guilty plea, and then welshes on the bargain, a different rule applies. "[A] guilty plea induced by an unkept bargain is involuntary.

So if the prosecutor makes and does not keep a promise to file a § 5K1.1 motion, and the promise is material to the plea, the court must allow the defendant to withdraw the plea and start over."

Burrell, 963 F.2d at 985 (7th Cir. 1992) (citations omitted).

This is a unique case governed by a plea agreement in which

the government did not reserve the discretion to determine whether

the defendant's cooperation merited a § 5K1.1 motion. In such a

case a district court has authority to determine whether a

defendant has satisfied the terms of his plea agreement, even if

one of those terms deals with assistance to the government.

We conclude that Melton is still viable and requires the

district court to specifically enforce the plea agreement if it

finds that the government breached it. This conclusion is

supported by our recent decision in United States v. Valencia, ___

F.2d at ___, 1993 WL 46576 at * 4. In that case, we remanded with

orders that a plea bargain be specifically enforced where defendant

"ha[d] elected specific performance rather than withdrawal of his

plea as his remedy." Valencia, __ F.2d at __, 1993 WL 46576 at *

4. If specific performance is called for, Watson's sentence must

be vacated, and he must be sentenced by a different judge.

Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427, 433 (1971); United States v. Goldfaden, 959 F.2d 1324, 1329

(5th Cir. 1992).

Of course, if the government is ordered to file a 5K1.1

motion, it remains free to inform the district court of the extent

and usefulness of the defendant's cooperation. See U.S.S.G. §

5K1.1, Application Note 3. Moreover, the district court may or may

not conclude that the defendant's cooperation warrants a downward

departure from the defendant's guideline range. U.S.S.G. §

5K1.1(a).

B.

Watson argues next that he was denied due process because the

district court did not inform him, before accepting his guilty

plea, that the sentencing guidelines instruct the court to consider

all relevant conduct in determining the sentence. Watson seeks to

have his sentence modified to reflect only the criminal conduct to

which he pleaded guilty.

This argument is new on appeal. Nevertheless, we have

considered it and find no merit to it. In United States v.

Pearson, 910 F.2d 221, 223 (5th Cir. 1990), cert. denied, 111 S.Ct.

977 (1991), we held that a defendant had no due process right to be

notified, before the district court accepted his guilty plea, that

his sentence would be enhanced for recidivism pursuant to the

sentencing guidelines. We said: "Due process does not mandate

. . . notice, advice, or a probable prediction of where, within the

statutory range, the guideline sentence will fall." Pearson, 910 F.2d at 223.4

In his initial brief, Watson argued that the district court did not comply with Fed. R. Crim. P. 11 when it accepted Watson's plea of guilty because the district court did not address Watson personally, and on the record, regarding the nature of the charges against him, the terms of the plea agreement, and whether he

IV.

For the reasons stated above, we affirm Campbell's conviction

and sentence. We remand for a determination of whether the

government breached Watson's plea agreement by not filing a § 5K1.1

motion in Watson's behalf. If the district court finds that the

government breached the agreement, it should order specific

performance of the agreement, and Watson should be resentenced by

a different judge.

AFFIRMED in part, VACATED in part, and REMANDED in part.

understood the nature of the charges to which he pled. In his reply brief, however, he withdrew this issue. Watson "is no longer seeking to reverse his conviction nor to withdraw his plea of guilty."