UNITED STATES COURT OF APPEALS FIFTH CIRCUIT

_________________

No. 97-40187

(Summary Calendar) _________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

KEVIN LAMONT MATHIS,

Defendant-Appellant.

Appeal from the United States District Court For the Eastern District of Texas (6:96-CR-45-6)

August 29, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Kevin Mathis pleaded guilty to one count of possession with

intent to distribute and distribution of cocaine base in violation

of

(a)(1). Mathis’s written plea agreement provided

that the government would file for a downward departure pursuant to

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. U.S. Sentencing Guidelines Manual § 5K1.1 if, in the government’s

opinion, Mathis provided substantial assistance. Although Mathis

cooperated, the government did not file for a downward departure at

sentencing. Mathis appealed, alleging that the government breached

the terms of his plea agreement. Finding no breach, we affirm.

I

The government charged Mathis with one count of conspiracy to

possess with intent to distribute and distribution of cocaine base

in violation of

and with three counts of possession

with intent to distribute and distribution of cocaine base in

violation of

(a)(1). Pursuant to a written plea

agreement, Mathis pleaded guilty to one count of violating

(a)(1) and agreed to cooperate “fully and honestly”

with the government. In return, the government agreed to dismiss

the remaining counts at sentencing, inform the court of Mathis’s

cooperation and the veracity of his statements, and, if the

government determined that Mathis provided substantial assistance,

the government agreed to “make a motion pursuant to guideline

section 5K1.1 or Federal Rule 35b for a downward departure from the

applicable sentencing guideline range.”1.

1 Fed. R. Crim. P. 35(b) provides that “[t]he court, on motion of the government within one year after the imposition of the sentence, may reduce a sentence to reflect a defendant’s subsequent, substantial assistance . . . .” The government’s decision not to move for downward departure is final only with regard to the section 5K1.1 motion, because the government may move for downward departure pursuant to Rule 35(b) any time within one year of sentencing, which occurred on January 24, 1997. Our

2 The presentence report (“PSR”) recommended a guideline range

of fifty-seven to seventy-one months’ imprisonment based on a total

offense level of twenty-five and a criminal history category of I.

In addition, the PSR stated that the “probation officer has no

information concerning the offense or the offender which would

warrant a downward departure from the prescribed sentencing

guidelines.”

At sentencing, Mathis objected to the government’s refusal to

move for downward departure. Mathis testified that a Drug

Enforcement Agency (“DEA”) agent assured him that the government

would file a motion for downward departure if Mathis furnished the

name of his drug supplier. Mathis testified that he told the agent

the name of his supplier in reliance on this agreement and that the

DEA acted on the information by seizing some of the supplier’s

assets. On cross-examination, however, Mathis acknowledged that

the government retained discretion under the plea agreement to

determine whether to file a motion for downward departure.

The district court adopted the recommendations of the PSR and

sentenced Mathis to fifty-seven months’ imprisonment, three years

supervised release, and a special assessment of $100. Mathis

timely appealed.

II

Mathis contends on appeal that the government breached the

review, therefore, applies only to the decision not to file the section 5K1.1 motion.

3 plea agreement by refusing to move for downward departure after

Mathis provided the name of his supplier. Mathis claims that,

because he fulfilled his part of the plea agreement to the best of

his ability and the government used the information he provided to

its benefit, he was entitled to the government motion.

We have held 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.” United States v. Valencia,

(5th Cir.

1993). The defendant bears the burden of proving the underlying

facts establishing a breach of the plea agreement by a

preponderance of the evidence. United States v. Garcia-Bonilla,

(5th Cir. 1993). To establish whether the government

has breached a plea agreement, the court must determine “whether

the Government’s conduct is consistent with the parties’ reasonable

understanding of the agreement.”

This is a question of law,

which this court reviews de novo.

It is well established that, absent an agreement to the

contrary, the government’s decision to file a motion for a

section 5K1.1 departure is discretionary. See Wade v. United

States,

,

,

(1992) (holding that section 5K1.1 gives government power, not

duty, to file motion when defendant has substantially assisted).

However, the government may bargain away its discretion in a plea

4 agreement and thereby obligate itself to move for a downward

departure in exchange for the defendant’s substantial assistance.

Garcia-Bonilla,

. When determining whether the

government has bargained away its discretion to file a

section 5K1.1 motion, this court reviews the specific language of

the plea agreement.

.

We have held that, when the government states in a plea

agreement that it “will file” a motion, the government has

bargained away its discretion. United States v. Price,

(5th Cir. 1996). In contrast, when the plea agreement

expressly states that the government retains discretion over the

decision to submit a motion, we have held that a refusal to do so

is reviewable only for unconstitutional motive. Garcia-Bonilla,

; United States v. Aderholt,

(5th Cir.

1996). Our initial inquiry, therefore, is whether the government,

in the text of the plea agreement, has bargained away or retained

its discretion.

Mathis’s plea agreement provides:

If, in the opinion of the United States, the defendant has provided substantial assistance . . . the United States will make a motion pursuant to guideline section 5K1.1 or Federal Rule 35b for a downward departure from the applicable sentencing guideline range. The defendant understands that the decision of whether to file such a motion lies exclusively with the United States . . . .

(emphasis added). In this case, the government agreed that it

“will” file a motion if Mathis provides substantial assistance, but

5 it also reserved the exclusive right to determine if Mathis’s

cooperation qualified as substantial assistance. When presented

with both mandatory and discretionary language in the plea

agreement, we have held that the statement that the government

“will” file the motion was expressly conditioned on the

government’s discretionary determination of whether the defendant

had provided substantial assistance. See Garcia-Bonilla,

(holding that government retained discretion when plea

agreement provided that government “will file” section 5K1.1

motion but that the decision of whether to file rests within “sole

discretion” of government); United States v. Urbani,

(5th Cir. 1992) (explaining that government retained discretion

when plea agreement provided that government “will file”

section 5K1.1 motion but “unequivocally disclaims” any obligation

to do so). The phrase “lies exclusively” in the Mathis plea

agreement closely resembles the “sole discretion” language of the

plea agreement in Garcia-Bonilla and the disclaimer in Urbani;

therefore, we find that the government retained its discretion.

Based on the language of the plea agreement and Mathis’s

admission at sentencing that the government retained its

discretion, it is clear that the parties intended and understood

that the government was not obligated under the plea agreement to

file a motion for downward departure. The government’s decision

not to file for a downward departure is, therefore, consistent with

6 the reasonable expectations of the parties, and Mathis is not

entitled to relief on appeal.

Mathis also asserts that, as a matter of contract, the court

must reduce his sentence under section 5K1.1 because his reliance

on the promise of a DEA agent entitles him to specific performance.

When a plea agreement is determined to be defective, an alternative

remedy imposed in some cases is specific performance by the

breaching party. Santobello v. New York,

,

,

(1971). Mathis asserts in his

brief that “[t]he trial court committed reversible error . . . by

not granting downward departure . . . .” The district court, of

course, is not a party to the plea agreement and may not be bound

by its terms. Even if the government were obligated to move for a

downward departure, the trial court is under no obligation to grant

such motion. United States v. Wilder,

(5th Cir.

1994). The district court may or may not conclude that the

defendant’s cooperation warrants a downward departure from the

guideline range, even where the government moves for such

departure. U.S.S.G. § 5K1.1(a). Therefore, although Mathis

asserts that he is entitled to downward departure, it is apparent

that the only specific performance he may request is for the filing

of a 5K1.1 motion by the government. Moreover, Mathis has

presented no evidence that the government breached the plea

agreement; therefore no specific performance is required.

7 Mathis also argues that, notwithstanding the plea agreement,

the DEA agent’s alleged assurances are sufficient to obligate the

government to file for downward departure. The government is

obligated to move for a downward departure when, in reliance on a

government’s representation, a defendant did his part, or stood

ready to do his part, but was unable to do so because the

government no longer required the information or opted not to use

it. United States v. Melton,

(5th Cir.

1991). The government is not relieved of its obligation to file

for a downward departure simply because it decides it no longer

wants or needs the information for which it bargained.

However, this rule only binds the government in cases such as

Melton, in which the government has bargained away its discretion

not to file a 5K1.1 motion. Since the government retained its

discretion in this case, it is not obligated to move for a downward

departure despite any alleged assurances from the DEA agent.

AFFIRMED.

8