United States v. Kirsch

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 10, 1999
• Docket: 98-3326
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS DEC 10 1999

TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 98-3326 v. (D.C. No. 97-CR-10071) (D. Kan.) PAMELA KIRSCH,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, BALDOCK and HENRY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See F ED . R. A PP . P. 34(f); 10th Cir. R. 34.1(A)(2). The case is

therefore ordered submitted without oral argument.

Defendant-Appellant Pamela Kirsch pled guilty to distribution of

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. methamphetamine in violation of 21 U.S.C. § 841(a)(1). She appeals her

sentence, and we affirm.

Ms. Kirsch entered into a plea agreement with the government in which she

agreed to cooperate in exchange for the government’s agreement to file, in its

discretion, a motion for downward departure under section 5K1.1 of the U.S.

Sentencing Guidelines. Unsatisfied with Ms. Kirsch’s cooperation, the

government decided not to file the motion, informing Ms. Kirsch of its decision

only a few hours before her sentencing hearing. Ms. Kirsch requested and was

denied a continuance to review and defend against the government’s decision.

The district court sentenced Ms. Kirsch to 121 months pursuant to the guidelines.

Ms. Kirsch first contends the district court’s failure to grant a continuance

at the sentencing hearing violated her due process rights by denying her the

opportunity to review the government’s reasons for not filing the section 5K1.1

motion. We review the denial of a request for a continuance for an abuse of

discretion. See United States v. Garcia, 78 F.3d 1457, 1467 (10th Cir. 1996). A

district court abuses its discretion to grant a continuance only if the denial is

arbitrary and substantially impairs the defendant’s opportunity to secure a fair

sentence. See id. In the case at bar, Ms. Kirsch was not entitled to probe the

reasons for the government’s refusal to file the section 5K1.1 motion until she

made a substantial showing that those reasons were unconstitutional. See Wade v.

-2- United States, 504 U.S. 181, 186 (1992). Ms. Kirsch did not allege any

unconstitutional motive when requesting a continuance, but her counsel did state

that he did not have “any constitutional basis at th[at] point” due to the late notice

by the government, Rec., vol. II, Tr. of Sent. Hr’g at 3. Even on appeal,

however, Ms. Kirsch has not come forth with any basis for contending the

government had an unconstitutional motive for refusing to file the motion, and

thus she has not shown that her opportunity to secure a fair sentence was

impaired. The district court did not abuse its discretion by denying her request

for a continuance. See, e.g, United States v. Bagnoli, 7 F.3d 90, 92 (6th Cir.

1993) (upholding district court’s denial of continuance where defendant did not

allege government was motivated by unconstitutional considerations in refusing to

file § 5K1.1 motion) (citing Wade, 504 U.S. at 186).

Ms. Kirsch also argues the district court erred in failing to review the

factual reasons offered by the government for not filing the section 5K1.1 motion.

However, the district court had no authority to review the government’s reasons

absent the defendant’s proffer of substantial evidence that the government’s

refusal was based on an unconstitutional motive. See Wade, 504 U.S. at 185-86.

Ms. Kirsch did not meet this admittedly heavy burden.

Ms. Kirsch next contends the government breached its plea agreement with

her by failing to move for the downward departure. Whether the government

-3- breached a plea agreement is a question of law which we review de novo. See

United States v. Courtois, 131 F.3d 937, 938 (10th Cir. 1997). The government

will be found in breach of the agreement where the decision not to file a section

5K1.1 motion was “animated by an unconstitutional motive or was not rationally

related to a legitimate government end.” Id. Ms. Kirsch does not argue that the

government had any unconstitutional or illegitimate motive; rather, she asserts

that she was deprived of her due process rights to notice and opportunity to be

heard.

First and foremost, we are without jurisdiction to review defendant’s claim

that the government breached its plea agreement by declining to move for a

substantial assistance departure without an accompanying argument that the

government had an unconstitutional or illegitimate motive when committing the

alleged breach. See United States v. Hawley, 93 F.3d 682, 691 (10th Cir. 1996).

Even assuming Ms. Kirsch is arguing the government intended to violate her due

process rights, such an argument is not persuasive. Ms. Kirsch knew prior to her

sentencing hearing that the government retained complete discretion over whether

to file the section 5K1.1 motion. See Plea Agreement ¶2(b), Rec., vol. I, doc. 213

(“If the defendant’s cooperation, in the sole discretion of the United States

Attorney, amounts to substantial assistance pursuant to section 5K1.1 of the

Sentencing Guidelines, a motion for departure from the guidelines will be filed.”)

-4- (emphasis added). If Ms. Kirsch wanted complete assurance that the motion

would be filed, she could have negotiated such an agreement. See, e.g., Courtois,

131 F.3d at 938 (“The government may bargain away this discretion . . . in a plea

agreement.”). Since Ms. Kirsch had advance notice of the government’s

discretion, she cannot claim a due process violation for the government’s exercise

of it.

For the foregoing reasons, the sentence imposed by the District Court is

AFFIRMED.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

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