In re: Sealed Opinion, No. 17-604 (10th Cir. 2017)Annotate this Case
Facing two counts of possession with intent to distribute, defendant John Doe pleaded guilty as charged pursuant to a Fed. R. Crim. P. 11(c)(1)(B) plea agreement. As part of that agreement, Doe waived his right to appeal or collaterally attack his plea, his conviction, or any sentence within the Guidelines range. And in return, the government agreed—in its sole discretion and by any means it deemed appropriate—to evaluate Doe’s cooperation in determining whether to file a substantial-assistance motion. The plea agreement also clarified that the ultimate decision to file such a motion was, like the government’s evaluation of Doe’s cooperation, solely within the government’s discretion. The district court accepted Doe’s guilty plea, but it didn’t sentence him right away. Instead, Doe remained in protective custody while he and a close family member helped law enforcement bring down a local drug operation. That cooperation placed both of their lives at risk. According to defendant, the government failed to exercise that discretion in good faith and thereby breached the plea agreement. Because the Tenth Circuit concluded the district court erred in ruling that its unpublished decision in United States v. Kovac, 23 F. App’x 931 (10th Cir. 2001), precluded it from reaching this argument, it reversed and remanded for further proceedings.