UNITED STATES COURT OF APPEALS For the Fifth Circuit
___________________________
No. 92-1357 ___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MICHAEL WATSON,
Defendant-Appellant.
* * * * * * * * * *
________________________
No. 92-1509 _________________________
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
2 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
1 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.
3 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
4 Middle District of Florida on charges arising out of the Florida
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
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
5 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
6 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.
7 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
8 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
9 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
10 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.
2 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."
11 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
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,
12 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
13 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,
14 909 (5th Cir. 1992) ("A defendant's coyness and lack of candor
demonstrate an inadequate acceptance of responsibility.").
III.
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.
15 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
16 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
3 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.
17 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).
18 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).
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
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
19 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."