United States v. Venita J. Coleman, United States of Am. v. Deetra J. Kindle, United States of Am. v. Ella Simone Terrill, United States of Am. v. Elana Roxanne Terrill, 895 F.2d 501 (8th Cir. 1990). · Go Syfert
Search
United States v. Venita J. Coleman, United States of Am. v. Deetra J. Kindle, United States of Am. v. Ella Simone Terrill, United States of Am. v. Elana Roxanne Terrill, 895 F.2d 501 (8th Cir. 1990). Cases Citing This Book View Copy Cite
“no defendant could reasonably read a plea agreement to bind the government to file a sec. 3553(e) motion absent an explicit promise to do so”
113 citation events (14 in the last 25 years) across 15 distinct courts.
Strongest positive: United States v. Stanley Johnson (ca8, 2001-02-26) · Strongest negative: United States v. Myron Keene (ca9, 1991-04-29)
Treatment trajectory · 1990 → 2026 · click a year to view as-of
1990 2008 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" United States v. Myron Keene
9th Cir. · 1991 · signal: but see · confidence high
But see, United States v. Coleman, 895 F.2d 501, 504 (8th Cir.1990) (3553(e) and 5K1.1 have different effect because “3553(e) allows the court to depart below the mandatory minimum statutory term of imprisonment [while] section 5K1.1 allows the court to depart below the guideline range”) (dicta). 2 In United States v. Ayarza, 874 F.2d 647 (9th Cir. 1989), cert. denied — U.S. -, 110 S.Ct. 847 , 107 L.Ed.2d 841 (1990), this court held that the requisite “motion of the government” provision found in both 5K1.1 and 3553(e) does not violate the doctrine of separation of powers or any cons…
discussed Cited "but see" United States v. David Victor Gutierrez, United States of America v. Patrick McMickle (2×)
8th Cir. · 1990 · signal: but see · confidence high
But see United States v. Coleman, 895 F.2d 501, 501 (8th Cir.1990) (holding that under 18 U.S.C.
discussed Cited as authority (verbatim quote) United States v. Stanley Johnson
8th Cir. · 2001 · quote attribution · 1 verbatim quote · confidence high
an express promise to file a motion unambiguously binds the government.
discussed Cited as authority (verbatim quote) United States v. Larry Wayne Natt (2×) also: Cited "see"
8th Cir. · 1995 · quote attribution · 1 verbatim quote · confidence high
no defendant could reasonably read a plea agreement to bind the government to file a sec. 3553(e) motion absent an explicit promise to do so
discussed Cited as authority (rule) United States v. Craven
A.F.C.C.A. · 2010 · confidence medium
Pretrial Agreement Interpretation This is yet another case where the appellant raises a pretrial agreement interpretation issue at the eleventh hour. 1 “The interpretation of a pretrial agreement is a question of law, which is reviewed under a de novo standard.” United States v. Acevedo, 50 M.J. 169, 172 (C.A.A.F.1999) (citing United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir.1996); United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990)). “[W]e look to the basic principles of contract law when interpreting pretrial agreements.” Id. (citing Cooper v. United States, 594 F.2d…
discussed Cited as authority (rule) Elmore v. Commonwealth
Ky. Ct. App. · 2007 · confidence medium
See, e.g., United States v. Rodgers, 101 F.3d 247, 253 (2d Cir.1996); United States v. Baird, 218 F.3d 221, 229 (3d Cir.2000); United States v. *628 Randolph, 230 F.3d 243, 248 (6th Cir.2000): United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990); United States v. Camarillo-Tello, 236 F.3d 1024, 1026-27 (9th Cir.2001); United States v. Peterson, 225 F.3d 1167, 1171 (10th Cir.2000); United States v. Nyhuis, 8 F.3d 731, 741-42 (11th Cir.1993); White v. United States, 425 A.2d 616, 618 (D.C.1980).
discussed Cited as authority (rule) State v. Bisson (2×)
Wash. · 2006 · confidence medium
See, e.g., United States v. Roitman, 245 F.3d 124, 126 (2d Cir. 2001); United States v. Baird, 218 F.3d 221, 229 (3d Cir. 2000); United States v. Harvey, 791 F.2d 294, 303 (4th Cir. 1986); United States v. Melton, 930 F.2d 1096, 1097-98 (5th Cir. 1991); United States v. Randolph, 230 F.3d 243, 248 (6th Cir. 2000); United States v. Rourke, 74 F.3d 802, 805 (7th Cir. 1996); United States v. Coleman, 895 F.2d 501, 505 (8th Cir. 1990); United States v. Camarillo-Tello, 236 F.3d 1024, 1026 (9th Cir. 2001); United States v. Peterson, 225 F.3d 1167, 1171 (10th Cir. 2000); United States v. Nyhuis, 8 F…
cited Cited as authority (rule) United States v. Henry Taylor, Jr.
8th Cir. · 2001 · confidence medium
Id. (citing United States v. Coleman, 895 F.2d 501, 506 (8th Cir.1990)).
cited Cited as authority (rule) Henry Taylor, Jr. v. United States
8th Cir. · 2001 · confidence medium
Id. (citing United States v. Coleman, 895 F.2d 501, 506 (8th Cir. 1990)).
discussed Cited as authority (rule) United States v. Stanley Johnson
8th Cir. · 2001 · confidence medium
Santobello, 404 U.S. at 262 , 92 S.Ct. 495 ; United States v. Coleman, 895 F.2d 501, 506 (8th Cir.1990) (“An express promise to file a motion unambiguously binds the government.”); United States v. Melton, 930 F.2d 1096, 1098 (5th Cir.1991) (“[T]he government may neither misrepresent its intentions nor renege on representations reasonably relied and acted upon by defendants ....”).
discussed Cited as authority (rule) United States v. Acevedo (2×)
C.A.A.F. · 1999 · confidence medium
See United States v. Van Thournout, 100 F.3d 590, 594 (8th Cir.1996); United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990).
discussed Cited as authority (rule) United States v. Mary Ann Rounsavall
8th Cir. · 1997 · confidence medium
"A sentencing court may not grant a downward departure for substantial assistance absent a motion by the government." United States v. Stockdall, 45 F.3d 1257, 1259 (8th Cir. 1995) (citing United States v. Kelly, 18 F.3d 612, 617 (8th Cir. 1994); United States v. Coleman, 895 F.2d 501, 504 (8th Cir. 1990)).
discussed Cited as authority (rule) United States v. Mary Ann Rounsavall
8th Cir. · 1997 · confidence medium
“A sentencing court may not grant a downward departure for substantial assistance absent a motion by the government.” United States v. Stockdall, 45 F.3d 1257, 1259 (8th Cir.1995) (citing United States v. Kelly, 18 F.3d 612, 617 (8th Cir.1994); United States v. Coleman, 895 F.2d 501, 504 (8th Cir.1990)).
discussed Cited as authority (rule) United States v. Van Thournout
8th Cir. · 1996 · confidence medium
Cf. Margalli-Olvera v. INS, 43 F.3d 345, 350-51 (8th Cir.1994) (issues concerning interpretation and enforcement of plea agreement considered in petition for judicial review of deportation order); United States v. Britt, 917 F.2d 353, 356, 359-61 (8th Cir.1990) (order vacating first guilty plea for defendant’s breach reviewed on direct appeal of conditional second guilty plea reserving right to appeal vacating of first guilty plea), cert. denied, 498 U.S. 1090 , 111 S.Ct. 971 , 112 L.Edüd 1057 (1991); United States v. Coleman, 895 F.2d 501, 502, 505-06 (8th Cir.1990) (issues concerning inte…
discussed Cited as authority (rule) Jose J. Padilla v. United States
8th Cir. · 1995 · confidence medium
Although an express promise to file a motion for a downward departure under sections 3553(e) or 5K1.1 is binding on the government, see United States v. Coleman, 895 F.2d 501, 506 (8th Cir.1990), we conclude the district court correctly determined that the plea agreement contained no such promise; the plain language of the agreement unequivocally vested the government with the sole discretion to determine whether or not to file a departure motion.
discussed Cited as authority (rule) Alejandro Margalli-Olvera v. Immigration and Naturalization Service (2×) also: Cited "see"
8th Cir. · 1995 · confidence medium
Coleman, 895 F.2d at 505; Harvey, 791 F.2d at 300-01 ; Carnine v. United States, 974 F.2d 924, 928-29 (7th Cir.1992); Anderson, 970 F.2d at 607 ; cf. Davis v. United States, 649 F.Supp. 754, 758 (C.D.Ill.1986).
discussed Cited as authority (rule) United States v. Lori Kay Stockdall, United States of America v. Floyd Eugene Stockdall (2×)
8th Cir. · 1995 · confidence medium
See United States v. Kelly, 18 F.3d 612, 617 (8th Cir.1994); United States v. Coleman, 895 F.2d 501, 504 (8th Cir.1990).
discussed Cited as authority (rule) United States v. Lershawn Vincent Kelly (2×) also: Cited "see"
8th Cir. · 1994 · confidence medium
See Santobello v. New York, 404 U.S. 257, 262-63 , 92 S.Ct. 495, 498-99 , 30 L.Ed.2d 427 (1971); United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990). “[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 , 92 S.Ct. at 499 .
cited Cited as authority (rule) United States v. Daniel P. Kramer, Daniel P. Kramer v. United States
8th Cir. · 1994 · confidence medium
United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990).
discussed Cited as authority (rule) United States v. One Parcel of Real Property
8th Cir. · 1993 · confidence medium
United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990) (ambiguous plea agreements must be construed against the drafter). 17 Because the result the court reaches is contrary to the terms and the spirit of the Neubergers' plea bargain, and ratifies questionable practices by the government, I respectfully dissent. 1 The acreage in question is valued by the government at no less than $25,000.
cited Cited as authority (rule) United States v. One Parcel of Real Property
8th Cir. · 1993 · confidence medium
United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990) (ambiguous plea agreements must be construed against the drafter).
discussed Cited as authority (rule) United States v. Linda Faye Mims
6th Cir. · 1993 · confidence medium
Rather, the agreement provides that the United States will file such a motion "if appropriate" and "if all conditions are fulfilled." Mims could not reasonably read the agreement to bind the government to file a section 5K1.1 motion "absent an explicit promise to do so." United States v. Coleman, 895 F.2d 501, 506 (8th Cir.1990).
cited Cited as authority (rule) United States v. Joe Don Massey
10th Cir. · 1993 · confidence medium
United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990).
discussed Cited as authority (rule) Gary Fritz v. United States
8th Cir. · 1993 · confidence medium
A district court errs in sentencing if it imposes a sentence that is in violation of law, that is the result of an incorrect application of the sentencing guidelines, or that is outside the applicable guideline range and is unreasonable. 18 U.S.C. § 3742 (e) and (f); United States v. Carnes, 945 F.2d 1013, 1014 (8th Cir.1991); United States v. Coleman, 895 F.2d 501, 504 (8th Cir.1990); United States v. Evidente, 894 F.2d 1000, 1003-04 (8th Cir.), cert denied, 495 U.S. 922 , 110 S.Ct. 1956 , 109 L.Ed.2d 318 (1990).
cited Cited as authority (rule) United States v. Robert Lee Ridout
8th Cir. · 1993 · confidence medium
See, e.g., United States v. Ludwig, 972 F.2d 948, 951 (8th Cir. 1992); United States v. Coleman, 895 F.2d 501, 506 (8th Cir. 1990).
discussed Cited as authority (rule) United States v. James E. Verser (2×) also: Cited "see"
7th Cir. · 1993 · confidence medium
Although "(a)n express promise to file a [Rule 35] motion unambiguously binds the government, (t)he lack of such a promise is clear evidence that such a promise was not made." Doe, 940 F.2d at 203 (quoting United States v. Coleman, 895 F.2d 501, 506 (8th Cir.1990)).
discussed Cited as authority (rule) United States v. Alicia Rodriguez-Morales A/K/A Gloria Hernandez (2×)
8th Cir. · 1992 · confidence medium
In Coleman , we referred to section 5K1.1 as being section 3553(e)’s counterpart and we said that “although the two sections can have different effects, their requirement of a government motion before departure in recognition of a defendant’s substantial assistance is identical; the requirement is clear and unambiguous.” 895 F.2d at 504 (footnote omitted).
discussed Cited as authority (rule) United States v. Cheng Ah-Kai
2d Cir. · 1991 · confidence medium
See United States v. Reina, 905 F.2d 638, 640 (2d Cir.1990); United States v. Rexach, 896 F.2d 710, 713 (2d Cir.), cert. denied, — U.S. -, 111 S.Ct. 433 , 112 L.Ed.2d 417 (1990); United States v. Coleman, 895 F.2d 501, 504 (8th Cir.1990).
discussed Cited as authority (rule) United States v. Michael O'Neal Carnes
8th Cir. · 1991 · confidence medium
The district court erred in its sentencing only if, among other grounds not relevant here, it imposed the sentence in violation of law. 18 U.S.C. § 3742 (e)(1) (Supp.1991); United States v. Coleman, 895 F.2d 501, 504 (8th Cir.1990); United States v. Evidente, 894 F.2d 1000, 1003-04 (8th Cir.1990), ce rt. denied, — U.S. -, 110 S.Ct. 1956 , 109 L.Ed.2d 318 (1990).
examined Cited as authority (rule) United States v. Randy Williams (4×)
8th Cir. · 1991 · confidence medium
We cannot agree that United States v. Coleman, 895 F.2d 501, 502-05 (8th Cir. 1990), controls this issue in the government’s favor.
cited Cited as authority (rule) United States v. Robert Goroza
9th Cir. · 1991 · confidence medium
Santobello v. New York, 404 U.S. 257, 262-63 , 92 S.Ct. 495, 498-99 , 30 L.Ed.2d 427 (1971); United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990).
discussed Cited as authority (rule) United States v. John Doe (2×)
7th Cir. · 1991 · confidence medium
The lack of such a promise is clear evidence that such a promise was not made. 18 United States v. Coleman, 895 F.2d 501, 506 (8th Cir.1990) (emphasis in original). 7 The Second Circuit also takes a skeptical view towards implying such a term.
discussed Cited as authority (rule) United States v. Thomas Tyson Conner
4th Cir. · 1991 · confidence medium
United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990) (in event of government breach, defendant may seek specific performance of the agreement or withdrawal of a guilty plea); United States v. Huerta, 878 F.2d 89, 93 (2d Cir.1989), cert. denied, - U.S. -, 110 S.Ct. 845 , 107 L.Ed.2d 839 (1990) (defendant has remedies for breach, citing Santobello v. New York, 404 U.S. 257 , 92 S.Ct. 495 , 30 L.Ed.2d 427 (1971)).
discussed Cited as authority (rule) United States v. Juanita Vargas, AKA Juanita Regalo Gasperotto, AKA Juanita Regalo Gasperotto De Vargas, and Sixto Nunez
10th Cir. · 1991 · confidence medium
See United States v. Lewis, 896 F.2d 246, 248 (7th Cir.1990); United States v. Coleman, 895 F.2d 501, 504-05 (8th Cir.1990); United States v. Alamin, 895 F.2d 1335, 1337 (11th Cir.), cert. denied, — U.S. —, 111 S.Ct. 196 , 112 L.Ed.2d 158 (1990); United States v. Francois, 889 F.2d 1341, 1344 (4th Cir.1989), ce rt. denied, — U.S. —, 110 S.Ct. 1822 , 108 L.Ed.2d 951 (1990); United States v. Huerta, 878 F.2d 89, 91 (2d Cir.1989), ce rt. denied, — U.S. —, 110 S.Ct. 845 , 107 L.Ed.2d 839 (1990); United States v. Ayarza, 874 F.2d 647, 653 (9th Cir.1989), cert. denied, — U.S. —, 110 …
cited Cited "see" State v. Brown
Minn. · 2000 · signal: see · confidence high
See Van Thournout, 100 F.3d at 594 (citing United States v. Coleman, 895 F.2d 501 , 505 (8th Cir.1990)).
cited Cited "see" United States v. Bruce Barresse
8th Cir. · 1997 · signal: see · confidence high
See United States v. Coleman, 895 F.2d 501, 506 (8th Cir. 1990).
cited Cited "see" United States v. Bruce Barresse
8th Cir. · 1997 · signal: see · confidence high
See United States v. Coleman, 895 F.2d 501, 506 (8th Cir.1990).
discussed Cited "see" United States v. Niecy Chaney, United States of America v. John H. Simms, A/K/A John John, United States of America v. Carl Tate
4th Cir. · 1994 · signal: see · confidence high
Compare Dixon, 998 F.2d at 229 (written plea agreement contained provision explicitly obligating prosecutor to make a Sec. 5K1.1 motion if the defendant provided assistance that the prosecutor found to be substantial); United States v. Conner, 930 F.2d 1073, 1074 (4th Cir.) (same), cert. denied, --- U.S. ----, 112 S.Ct. 420 (1991); see United States v. Coleman, 895 F.2d 501, 506 (8th Cir.1990) (absence of an "express promise" to file a Sec. 5K1.1 motion in a plea agreement "is clear evidence that such a promise was not made").
discussed Cited "see" United States v. Perry Duggan
8th Cir. · 1993 · signal: see · confidence high
See United States v. Coleman, 895 F.2d 501, 506 (8th Cir. 1990) (absence of promise in plea agreement is clear evidence promise was not made); United States v. Mahler, 984 F.2d 899, 905 (8th Cir. 1993) (government must introduce evidence if a defendant challenges a factual statement in the presentence report). 3 Duggan also contends that in using the evidence of Duggan's other drug transactions during the sentencing hearing, the Government breached the "use immunity" provisions of the plea agreement.
cited Cited "see" United States v. Walter Ray Womack, United States of America v. Karleen Rae Stone, Also Known as Cassie Williams, Also Known as Cassie Fox, United States of America v. Eric Dwayne French, United States of America v. Virgil Lee Tolefree, Also Known as Virgil Kirkwood, United States of America v. Donald Eugene Caraway
8th Cir. · 1993 · signal: see · confidence high
See United States v. Coleman, 895 F.2d 501, 506 (8th Cir.1990) ("An express promise to file a [3553(e) ] motion unambiguously binds the government.
cited Cited "see" United States v. Womack
8th Cir. · 1993 · signal: see · confidence high
See United States v. Coleman, 895 F.2d 501, 506 (8th Cir.1990) (“An express promise to file a [3553(e)] motion unambiguously binds the government.
cited Cited "see" United States v. Donald Eugene Fortney
8th Cir. · 1992 · signal: see · confidence high
See United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990) (government’s failure to fulfill plea agreement permits defendant to seek specific performance or withdrawal of plea).
discussed Cited "see" United States v. Alvin Berke
7th Cir. · 1991 · signal: see · confidence high
See United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990) (“for a court to depart based upon the substantial assistance under § 3553(e), the government must first file a motion”); see also *1224 United States v. Lewis, 896 F.2d 246 (7th Cir.1990) (upholding motion requirement of § 5K1.1); United States v. Wilson, 922 F.2d 1336, 1342 (7th Cir.1991) (upholding the “parallel” motion requirements of § 3553(e) and § 5K1.1).
cited Cited "see" United States v. Scott Donatiu
7th Cir. · 1991 · signal: see · confidence high
See United States v. Coleman, 895 F.2d 501 (8th Cir.1990).
discussed Cited "see" United States v. Miroslav Oransky (2×)
8th Cir. · 1990 · signal: see · confidence high
See id. at 504-06 .
discussed Cited "see" United States v. John K. Spees (2×) also: Cited "see, e.g."
8th Cir. · 1990 · signal: see · confidence high
See Coleman, 895 F.2d at 504 n. 6 (section 3553(e)); United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989) (section 5K1.1); Grant, 886 F.2d at 1514 (section 5K1.1); United States v. Justice, 877 F.2d 664, 668-69 (8th Cir.1989) (section 5K1.1); United States v. Poston, 902 F.2d 90 , 100 n. 11 (D.C.Cir.1990) (section 3553(e)); La Guardia, 902 F.2d at 1017 n. 6 (section 3553(e)); United States v. White, 869 F.2d 822, 829 (5th Cir.1989) (section 5K1.1).
cited Cited "see" United States v. Gerald Levy (89-5980) and Calvin Black (89-6099)
6th Cir. · 1990 · signal: see · confidence high
See United States v. Coleman, 895 F.2d 501 , 504 n. 6 (8th Cir.1990); Grant, 886 F.2d at 1514 .
cited Cited "see" United States v. Douglas Dobynes, United States of America v. Earl Wright, Jr.
8th Cir. · 1990 · signal: see · confidence high
See United States v. Coleman, 895 F.2d 501 , 504 n. 6 (8th Cir.1990).
discussed Cited "see, e.g." United States v. Thomas Robert Hubers (2×)
8th Cir. · 1991 · signal: see also · confidence medium
United States v. Oransky, 908 F.2d 307, 309 (8th Cir.1990) ("section 5K1.1 requires a government motion before a defendant may receive ... a downward departure"); United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989) ("we hold that the absence of a 5K1.1 motion by the government precluded a departure by the trial court."), cert. denied, --- U.S. ----, 110 S.Ct. 1493 , 108 L.Ed.2d 629 (1990); see also United States v. Coleman, 895 F.2d 501, 504 (8th Cir.1990). 9 In denying the need for a motion from the government, Hubers argues that the reasoning of United States v. Gutierrez, 908 F.2d…
cited Cited "see, e.g." United States v. Egan
N.D. Ill. · 1990 · signal: see also · confidence medium
See also United States v. Coleman, 895 F.2d 501, 505 (8th Cir.1990); United States v. Rexach, 713 F.Supp. 126 (S.D.N.Y.1989). 5 .
Retrieving the full opinion text from the archive…
United States
v.
Venita J. Coleman, United States of America v. Deetra J. Kindle, United States of America v. Ella Simone Terrill, United States of America v. Elana Roxanne Terrill
89-1704.
Court of Appeals for the Eighth Circuit.
Feb 7, 1990.
895 F.2d 501
Published

895 F.2d 501

UNITED STATES of America, Appellant,
v.
Venita J. COLEMAN, Appellee.
UNITED STATES of America, Appellant,
v.
Deetra J. KINDLE, Appellee.
UNITED STATES of America, Appellant,
v.
Ella Simone TERRILL, Appellee.
UNITED STATES of America, Appellant,
v.
Elana Roxanne TERRILL, Appellee.

No. 89-1704.

United States Court of Appeals,
Eighth Circuit.

Submitted Dec. 15, 1989.
Decided Feb. 7, 1990.

Robert J. Erickson, Washington, D.C., for U.S.

Claudia York, Kansas City, Mo., for Coleman.

Leonard Meyer, Kansas City, Mo., for D. Kindle.

James B. Jackson, Kansas City, Mo., for Ella Terrill.

Kevin Locke, Kansas City, Mo., for Elana Terrill.

Before ARNOLD, FAGG, and MAGILL, Circuit Judges.

MAGILL, Circuit Judge.

1

Venita Coleman, Deetra Kindle, Ella Terrill, and Elana Terrill (appellees) were each charged with one count of conspiracy and at least one count of distribution of cocaine within one thousand feet of a schoolyard in violation of 21 U.S.C. Sec. 845a(a). In exchange for their promises of future cooperation, the prosecutor agreed to drop all counts except for at least one count against each appellee of distributing cocaine within one thousand feet of a school. Although the government agreed to inform the district court of appellees' cooperation, it consistently refused to file a motion pursuant to 18 U.S.C. Sec. 3553(e) asking for a departure below the mandatory one-year minimum sentence provided for by 18 U.S.C. Sec. 845. Appellees moved for an order directing the government to file a motion. Because the district court found the letters detailing appellees' cooperation to be the functional equivalent of a Sec. 3553(e) motion, it imposed sentences below the minimum[1] without ordering the government to file a motion.

2

The issues to be decided on appeal are (1) whether a government motion under Sec. 3553(e) is specifically required before the court may depart from the mandatory minimum sentence imposed by statute; (2) if a motion is not required, whether the cooperation letters provided a sufficient basis for the court to depart; and (3) if a motion is required, whether the plea agreements obligated the government to file a Sec. 3553(e) motion. Because the plea agreements clearly did not obligate the government to file a Sec. 3553(e) motion and the district court departed without a motion by the government, we reverse and remand for further proceedings consistent with this opinion.

I.

3

The government charged appellees with one count of conspiracy and at least one count of distribution of cocaine within one thousand feet of a schoolyard. Appellees thereafter entered into plea negotiations with the government.

4

During the negotiations, various defense counsel asked the government to commit itself to filing a Sec. 3553(e) motion if appellees' cooperation proved to be substantial. The counsel also sought to place a provision to that effect into the plea agreements. The government categorically refused to commit itself to file such a motion on behalf of any of the appellees by placing such a provision into the plea agreements. Furthermore, counsel for Coleman was advised that "the government would agree only to advise the court of the nature, extent and importance of the cooperation provided by each of the female defendants." United States v. Coleman, 707 F.Supp. 1101, 1105 (W.D.Mo.1989). The government stated, however, that it would not file a Sec. 3553(e) motion no matter what the level of an appellee's cooperation. Id. Counsel for Kindle was also advised that the government would only inform the court of her cooperation. Id. Counsel for Ella Terrill was advised that the filing of a Sec. 3553(e) motion would be considered, depending upon her cooperation. Although refusing to commit itself to filing the motion, the government did agree to inform the court of her cooperation. Id. Finally, counsel for Elana Terrill was advised of an alleged policy against filing Sec. 3553(e) motions which would preclude the government from filing a motion no matter how substantial her cooperation. Nevertheless, the government indicated it would advise the sentencing court of her cooperation. Id. at 1105-06.

5

These negotiations culminated in the execution of several plea agreements whereby all charges against appellees were dismissed except for at least one count against each of the four appellees for distributing cocaine within one thousand feet of a schoolyard. Appellees agreed to plead guilty to this charge. The agreements[2] further provided in part that:

6

The United States will advise the sentencing court of the nature, extent, and importance of the cooperation provided by the defendant. It is understood by the parties that the United States Attorney is not precluded from allocuting or recommending any specific sentence to be imposed as provided by Rule 32, Federal Rules of Criminal Procedure.

7

Plea Agreement, p 9. Paragraph 2 stated that each appellee's "total potential criminal exposure as a result of her plea" included incarceration for "not less than one (1) year, not more than forty (40) years."[3] Finally, paragraph 12 stated that the plea agreement constituted "the complete agreement between the parties and [that] no other promises, express or implied, [were] made by the United States or its representatives to the defendant[s] or to the [defendants'] attorney[s]."

8

After entering their pleas, each of the appellees cooperated with the government by providing information regarding illegal drug activity and by testifying against a drug leader at his trial. The government subsequently informed the sentencing court by letter of the nature, extent and importance of each appellee's cooperation. Defense counsel thereafter again urged the government to file a Sec. 3553(e) motion. The government again categorically refused to file a motion pursuant to Sec. 3553(e) on behalf of appellees. However, the government informed counsel for Kindle that it had not yet decided whether to file a Sentencing Guideline, Sec. 5K1.1 motion on her behalf. The government never filed either a Sec. 5K1.1 or Sec. 3553(e) motion.

9

Appellees moved the district court for an order directing the government to file a Sec. 3553(e) motion. The court found the plea agreements to be ambiguous and concluded that the government's own construction thereof "obviates the necessity of entering any order directing the government to file a set of Section 3553(e) motions. ... [W]e treat [the government's cooperation] letters ... as the functional equivalent of Section 3553(e) motions filed in regard to each of the defendants." United States v. Coleman, 707 F.Supp. at 1119. The court thereafter imposed sentences below the statutory minimum. From this order, the government appeals.II.

10

We review the sentences imposed by the district court pursuant to the Sentencing Guidelines under 18 U.S.C. Sec. 3742. Therefore, we may reverse if the sentences were imposed in violation of law. Id. Sec. 3742(e)(1).[4] In conducting our inquiry, however, we must "give due regard to the opportunity of the district court to judge the credibility of the witnesses, and shall accept the findings of fact of the district court unless clearly erroneous." Id. Sec. 3742(e).

A.

11

Appellees contend that the district court properly departed from the mandatory one year minimum sentence of Sec. 845a(a) even though the government had not filed a Sec. 3553(e) motion. The district court's decision was based on its conclusion that the cooperation letters filed by the government were the functional equivalent of a Sec. 3553(e) motion. As a result, the district court concluded that a Sec. 3553(e) motion was not necessary for it to depart from the mandatory minimum sentence. Section 3553(e) provides that:

12

Upon motion of the Government, the court shall have the authority to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant's substantial assistance in the investigation or prosecution of another person who has committed an offense. Such sentence shall be imposed in accordance with the guidelines and policy statements issued by the Sentencing Commission....

13

18 U.S.C. Sec. 3553(e) (emphasis added).

14

Section 3553(e)'s counterpart under the guidelines is Sec. 5K1.1. That section provides in part that "[u]pon motion of the government stating that the defendant has made a good faith effort to provide substantial assistance in the investigation or prosecution of another person who has committed an offense, the court may depart from the guidelines." Sentencing Guidelines, Sec. 5K1.1 (Nov. 1, 1987) (emphasis added). Although the two sections can have different effects,[5] their requirement of a government motion before departure in recognition of a defendant's substantial assistance is identical; the requirement is clear and unambiguous. Therefore, we construe Sec. 3553(e)'s motion requirement exactly as we construe Sec. 5K1.1's motion requirement. See United States v. Francois, 889 F.2d 1341, 1345 (4th Cir.1989).

15

In an opinion filed late last year, this court held that absent a Sec. 5K1.1 motion by the government, the plain language of Sec. 5K1.1 prohibits a trial court from departing from the guideline range.[6] United States v. Smitherman, 889 F.2d 189, 191 (8th Cir.1989), cert denied, --- U.S. ----, 110 S.Ct. 1493, --- L.Ed.2d ---- (1990); see also United States v. Francois, 889 F.2d at 1344 (language of Sec. 5K1.1 is clear and unequivocal; court cannot even consider departure until government files a Sec. 5K1.1 motion); cf. United States v. Grant, 886 F.2d 1513, 1513-14 (8th Cir.1989) (section 5K1.1's government motion requirement upheld on constitutional grounds). Therefore, we hold that in order for a court to depart based upon substantial assistance under Sec. 3553(e) from a mandatory minimum sentence, the government must first file a motion under Sec. 3553(e). See United States v. Huerta, 878 F.2d 89, 91 (2d Cir.1989) (Secs. 3553(e) and 5K1.1 "unambiguously limit the discretion of a judge to impose a sentence below the statutory minimum on grounds of the defendant's cooperation to cases in which the government makes a motion requesting such a departure"), cert. denied, --- U.S. ----, 110 S.Ct. 845, 107 L.Ed. 201, 839 (1990).

16

The district court concluded that because the government's cooperation letters constituted the functional equivalent of a Sec. 3553(e) motion, there was a sufficient basis for the trial court to depart. We disagree. The motion requirement is clear and unambiguous. There are no statutory exceptions. Whether particular government action is the functional equivalent of a Sec. 3553(e) motion is therefore irrelevant. A letter informing the trial court of an appellee's cooperation, even if the functional equivalent of a Sec. 3553(e) motion, is nonetheless not a motion under Sec. 3553(e). Therefore, the district court erred in relying upon the letters as a basis for departure in the absence of an actual Sec. 3553(e) motion.[7]

17

Such a finding does not end our inquiry, however. Although a Sec. 3553(e) motion was not made, appellees may nevertheless have a remedy for the government's refusal to file the motion if the plea agreements between appellees and the government bound the government to file such a motion. To this issue, we now turn.

B.

18

If the government fails to fulfill the terms of a plea agreement, an unsatisfied defendant is not without a remedy. She may seek specific performance of the agreement or withdraw her guilty plea. Santobello v. New York, 404 U.S. 257, 262-63, 92 S.Ct. 495, 498-99, 30 L.Ed.2d 427 (1971); see also United States v. Huerta, 878 F.2d at 93 (dicta), cert. denied, --- U.S. ----, 110 S.Ct. 845, 107 L.Ed.2d 839 (1990). In determining whether the government has fulfilled its obligations under the plea agreement, we look to the agreements' provisions. If they are ambiguous, we must read them against the drafter, which in this case is the government. See Innes v. Dalsheim, 864 F.2d 974, 979 (2d Cir.1988), cert. denied, --- U.S. ----, 110 S.Ct. 50, 107 L.Ed.2d 19 (1989).

19

The district court found that paragraph 9 of the plea agreements contained ambiguous language. Paragraph 9 provided in part that the "United States will advise the sentencing court of the nature, extent, and importance of the cooperation provided by the defendant." As a result of the district court's conclusion, the "ambiguity" was read against the government, and paragraph 9 interpreted to bind the government to file a motion under Sec. 3553(e). The district court did not order specific performance of the plea agreements, however. The court stated that such action was unnecessary because the government's cooperation letters were the functional equivalent of a Sec. 3553(e) motion. United States v. Coleman, 707 F.Supp. at 1119. As we have already held, supra, this conclusion is in error. A Sec. 3553(e) motion must be filed or the court cannot depart. Therefore, the issue which remains for us to decide is whether paragraph 9 binds the government to file a Sec. 3553(e) motion or is ambiguous on that point.[8] If it binds the government or is ambiguous, then we must determine whether appellees are entitled to relief in the form of an order directing the government to file such a motion. Because we find paragraph 9 was not even ambiguous, we hold appellees were not entitled to an order directing the government to file a Sec. 3553(e) motion.

20

In determining whether paragraph 9 is ambiguous, our inquiry is limited. It is irrelevant that the paragraph may be in certain respects ambiguous as long as it is not ambiguous on the issue of whether the government committed itself to file a Sec. 3553(e) motion. The district court emphasizes that paragraph 9 is ambiguous in part because it does not state the precise manner in which the government will inform the court of appellees' assistance. Specifically, it does not state that the government will inform the court "by letter" which is what the government represents it had agreed to do. The precise manner in which the government agreed to inform the court is not the relevant focal point, however. Even if paragraph 9 was ambiguous as to the exact manner in which the government would inform the court, the paragraph clearly excluded Sec. 3553(e) as an option. On this one point, there is no ambiguity.

21

From the very beginning of her discussions with defense counsel, the prosecutor categorically refused to place any provision in the plea agreements committing the government to file a Sec. 3553(e) motion. United States v. Coleman, 707 F.Supp. at 1105. The government's position never changed. There is absolutely no evidence in the record to the contrary. In fact, there is no mention of such a government commitment to file a Sec. 3553(e) motion anywhere in the plea agreements. Despite the misunderstandings noted by the district court, the government's uncompromising position combined with the absence of any language in the plea agreements committing the government to filing a Sec. 3553(e) motion leads us to conclude that the plea agreements were not ambiguous.[9]

22

Furthermore, because of the extraordinary nature of the relief provided by Sec. 3553(e) and the clear dictate that the government must first file a motion before the court may depart, no defendant could reasonably read a plea agreement to bind the government to file a Sec. 3553(e) motion absent an explicit promise to do so. Therefore, there can be no ambiguity in the absence of an express government promise in the plea agreements to file a Sec. 3553(e) motion. An express promise to file a motion unambiguously binds the government. The lack of such a promise is clear evidence that such a promise was not made. In interpreting each plea agreement as the exclusive and final agreement,[10] we are bound to conclude that each plea agreement unambiguously[11] excluded a commitment by the government to file a Sec. 3553(e) motion. Therefore, appellees were not entitled to an order directing the government to file a motion.

III.

23

In summary, we hold that a government motion is required before a court may depart from the mandatory minimum sentence under Sec. 3553(e). We further hold that the plea agreement was not ambiguous but clearly excluded a government commitment to file a Sec. 3553(e) motion. We therefore reverse the district court's imposition of appellees' sentences finding them to be in violation of Sec. 3553(e), and remand for further sentencing proceedings consistent with this opinion.

1

Each defendant received a sentence of sixty days imprisonment with permission for work release

2

Although each appellee signed a separate plea agreement, the agreements were identical in all relevant respects

3

The recommended penalty range under the Sentencing Guidelines was 10-16 months incarceration. Such a range was slightly under to slightly over the mandatory minimum penalty of one year provided by 21 U.S.C. Sec. 845a(a)

4

Section 3742(e) also allows us to review a sentence to determine: (1) whether it "was imposed as a result of an incorrect application of the sentencing guidelines"; (2) whether it "is outside the range ... and is unreasonable"; or (3) whether it "was imposed for an offense for which there is no applicable sentencing guideline and is plainly unreasonable." Id. Sec. 3742(e)(2)-(3). The parties agree that the first and third standards of review are inapplicable to this case. Appellees argue, however, that we can review the sentence for reasonableness since it was imposed outside the applicable guideline range. See id. Sec. 3742(d)(3). Such a review standard is inappropriate where, as here, we must determine whether the district court had the authority to depart from the mandatory statutory minimum sentence or the guideline range. It is wholly irrelevant whether the sentence actually imposed was reasonable because our inquiry is limited to whether as a matter of law the court had power to depart. Therefore, we review the sentence to determine if it was imposed in violation of law. See id. Sec. 3742(e)(1)

5

Section 3553(e) allows the court to depart below the mandatory minimum statutory term of imprisonment stated in the statute. Section 5K1.1 allows the court to depart below the guideline range. See Secs. 3553(e), 5K1.1

6

Nevertheless, if a defendant's constitutional due process rights have been violated by prosecutorial misconduct in failing to file a motion under Sec. 5K1.1 or Sec. 3553(e), a government motion might not be necessary. See United States v. Smitherman, 889 F.2d at 191. However, because the due process issue was not raised on appeal in this case, we need not reach it. See United States v. Grant, 886 F.2d 1513, 1514 (8th Cir.1989) ("[w]e need not consider the related question of whether a prosecutor's arbitrary or bad faith refusal to move for a Sec. 5K1.1 departure violates due process because Grant has not presented the issue to this court"); see also Airco Indust. Gases, Inc. v. Teamsters Welfare Pension Fund of Philadelphia & Vicinity, 850 F.2d 1028, 1034 (3d Cir.1988)

7

The government may have reasons for wanting to inform a court about a particular defendant's cooperation without seeking a departure. For example, the government may seek to have the court sentence the defendant on the lower end of the penalty range provided by statute or the guidelines instead of departing therefrom

8

In reviewing the district court's conclusion of ambiguity, we accept all the factual findings by the district court unless clearly erroneous, but review the court's legal conclusion of ambiguity de novo. See United States v. Harvey, 791 F.2d 294, 300-01 (4th Cir.1986) (whether plea agreement is ambiguous is a legal question)

9

The government prosecutor informed counsel for Coleman that she had knowledge of a California case which could allow departures absent a government motion. No such case ever surfaced and the district court concluded that it never existed. United States v. Coleman, 707 F.Supp. at 1107, 1108. We do not believe that the government's mistake on this point has any effect on the outcome of this case. First, the government never informed Coleman's counsel it would acquiesce in that interpretation of Sec. 3553(e) in argument before the district court. Second, the case mentioned was allegedly from California and as such had no binding precedential value in this circuit even if it did exist. Third, defense counsel failed to locate any such California case. Finally, the language of Sec. 3553(e) that a motion by the government is required before the sentencing court can depart from the minimum sentence provided by statute is clear and unambiguous. Therefore, any reliance on the alleged California case was unreasonable. We also note that there was no allegation of maliciousness on the part of the prosecutor in mentioning the California case. The California case controversy actually hurts appellees' position. It constitutes further evidence that even though its reasoning was based upon inaccurate information, the government nevertheless refused to commit itself to file a Sec. 3553(e) motion

10

Plea Agreement, p 12

11

Furthermore, paragraph 2 of the plea agreements identifies the sentence to be imposed as containing a mandatory minimum sentence of one year. This provision is consistent with the government's position that it did not commit to filing a Sec. 3553(e) motion