On Appeal From the United States District Court For the District of the Virgin Islands (D.C. Crim. Action No. 95-cr-00038) Argued December 11, 1997
Before: Sloviter, Stapleton and Mansmann, Circuit Judges
The opinion of the court was delivered by: Stapleton, Circuit Judge:
Rupert Isaac appeals from a final judgment of sentence. We will reverse and remand for reconsideration of Isaac's motion to enforce the plea agreement he reached with the government.
Defendant Rupert Isaac was pulled over by the Virgin Islands police for a routine traffic violation. During the stop, the officers observed an empty holster in the side pocket of the vehicle door. After conducting a search of the vehicle, they found a box of live rounds of .357-caliber ammunition and a quantity of marijuana divided into a number of plastic "dime" bags. After arresting Isaac, the officers conducted an inventory search of his vehicle and located a loaded .357-caliber revolver underneath the driver's seat floor mat.
Isaac was named in a two-count indictment charging him with (1) carrying a firearm during and in relation to a drug trafficking crime, contrary to 18 U.S.C. § 924(c)(1); and (2) possession of a controlled substance with intent to distribute, in violation of 21 U.S.C. § 841(a)(1). Shortly thereafter, Isaac pled guilty to both counts, pursuant to an agreement with the government, which included the following provisions:
1. The defendant agrees to cooperate fully and truthfully with the government . . . .
4. If the Government in its sole discretion determines that the defendant has fulfilled his obligations of cooperation as set forth above, at the time of sentencing or within one (1) year thereof the government will . . .
b. Make a motion to allow the Court to depart from the Sentencing Guidelines pursuant to Sentencing Guideline § 5K1.1, if the government, in its sole discretion, determines that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.
The government held a series of meetings with the defendant pursuant to the agreement. Ultimately, however, the government determined that it would not request a downward departure under U.S.S.G. § 5K1.1.
When no motion was filed, Isaac moved for an order directing the government to file a § 5K1.1 motion or, alternatively, for an order allowing him to withdraw his guilty pleas. The motion asserted that the pleas were entered in reliance on the government's commitment to file a § 5K1.1 motion and that the government had failed to honor that commitment in "bad faith." App. at 89. Isaac's primary argument was that the plea agreement should be specifically enforced, but he pointed out that under Santobello v. New York, 404 U.S. 257 (1971), the court could, in the alternative, grant him permission to withdraw his pleas.
The government's response to this motion "readily concede[d] that defendant Isaac did meet with law enforcement officials on a few occasions in an attempt to fulfill his end of the bargain. However, [the response continued,] nothing he provided during these Discussions could [be] verified or corroborated independently to date. Hence, his counsel was advised that the government [had] determined, in its sole discretion, that the defendant [had] not provided `substantial assistance.' " App. at 83.
At the oral argument on Isaac's motion, his counsel candidly acknowledged that he had no reason to believe the government's refusal to file a motion was based on race or other constitutionally suspect grounds. Rather, he relied on the plea agreement and a written supplemental agreement in which the government had specified the kind of information it sought from Isaac. Counsel represented to the court that Isaac had supplied the information that he had of the character sought, that the government had indicated it had some reason to believe the information might be truthful, but that it had declined to file a § 5K1.1 motion solely because it could not independently corroborate that information. As counsel put his argument, "[t]he government just hasn't used its vast resources to verify what the defendant has said but that is not[a] sufficient" reason to justify not filing the motion. App. at 56.
In response, the government's primary position was that it had no duty to explain its decision not to file the motion because the court had no jurisdiction to review the exercise of "its sole discretion" under the agreement. The government did, however, confirm that Isaac had provided some information about criminal activity of others of the character specified in the supplemental agreement. It added, by way of explanation, that it had been unable to independently verify the information provided and further indicated that it believed Isaac had been selective in his disclosures.
The district court denied the motion, determining that because the agreement gave the government "sole discretion" to decide whether a substantial assistance motion was warranted, the court had no power to review the government's refusal to file the motion.
Isaac moved for reconsideration. In the motion and the course of the ensuing evidentiary hearing, Isaac advanced new grounds, independent of the plea agreement, in support of his application for permission to withdraw his pleas. He asserted that there was "no factual basis" for his pleas. App. at 107. With respect to the weapons count, he insisted that it was clear, based on the government's own evidence, that he had not used or carried the gun in relation to a drug offense. With respect to the possession count, he alleged that the government's evidence did not demonstrate that the substance possessed was marijuana.
After an evidentiary hearing at which the district court heard the government's evidence, the motion for reconsideration was denied. In its opinion, the court concluded that the government's evidence demonstrated that Isaac had carried a gun in relation to the drug offense of possession with intent to distribute. It pointed specifically to the large amount of marijuana found in the car, the presence of packaging and paraphernalia used in distributing marijuana, the fact that the gun was loaded and the fact that it was in a place readily accessible to Isaac as he drove. With respect to the second count, the court concluded that the substance discovered in Isaac's vehicle was marijuana, pointing to the testimony of Lt. Harvey. Harvey testified that he had field tested for marijuana and received positive results and that he had received a report from the DEA lab stating that the substance had tested positive for marijuana.
The court then sentenced Isaac to the statutory mandatory minimum five years on Count I, a consecutive 24 months for Count II, three years supervised release, a $1,000 fine, and a $100 special assessment. This appeal followed.
Isaac contends the district court erred in determining that it had no power to review the government's refusal to file a substantial assistance motion pursuant to the plea agreement. The district court characterized Isaac's motion as a request for the court to "review independently the quality of his assistance to determine whether it was indeed `substantial.' " App. at 95. The district court declined this invitation, choosing to rely upon the agreement's language that the government had "sole discretion" whether to make the § 5K1.1 motion. The question on appeal is ...