US v. Thomas Jones, No. 12-4924 (4th Cir. 2013)
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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4924 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. THOMAS ALAN JONES, Defendant - Appellant. Appeal from the United States District Court for the Northern District of West Virginia, at Martinsburg. Gina M. Groh, District Judge. (3:11-cr-00035-GMG-DJJ-1) Submitted: April 8, 2013 Decided: April 18, 2013 Before GREGORY, DUNCAN, and DAVIS, Circuit Judges. Affirmed by unpublished per curiam opinion. Kevin D. Mills, Shawn R. McDermott, MILLS & ASSOCIATES, PLLC, Martinsburg, West Virginia, for Appellant. William J. Ihlenfeld, II, United States Attorney, Thomas O. Mucklow, Assistant United States Attorney, Martinsburg, West Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Thomas Alan Jones pled guilty to possession of 126.3 pounds (57.4 kilograms) of marijuana with intent to distribute, 21 U.S.C.A. § 841(a)(1), (b)(1)(C) (West 1999 & Supp. 2012), and was sentenced to a term of eighteen months imprisonment. Jones appeals his sentence, contending that the district court erred by not holding an evidentiary hearing to determine whether the government acted in good faith when it refused to move for a substantial assistance departure under Guidelines Manual § 5K1.1, p.s. (2012). U.S. Sentencing The government argues that Jones appeal should be dismissed pursuant to the waiver provision in his plea agreement. As explained below, the waiver does not bar Jones appeal; however, we affirm the sentence. In his plea agreement, Jones waived the right to appeal his sentence if it was within the statutory maximum, and the manner in which that sentence was determined on any ground whatever. Jones also waived the right to ask the district court for any departure. The plea agreement gave the government the right to seek a departure under USSG § 5K1.1 in its sole discretion, without making any promise that it would file such a motion or incurring any obligation to do so. At the guilty plea hearing, Jones, a forty-four-year-old college graduate, assured the court that he understood these provisions. 2 A criminal defendant may, in a valid plea agreement, waive the right to appeal under 18 U.S.C. § 3742 (2006). United States v. Manigan, 592 F.3d 621, 627 (4th Cir. 2010). This court reviews the validity of an appellate waiver de novo and will enforce the waiver if it is knowing and intelligent and the issue appealed States v. is Cohen, within 459 the F.3d scope 490, of 494 that (4th waiver. Cir. 2006); States v. Blick, 408 F.3d 162, 168 (4th Cir. 2005). not contend college that his background, waiver and the is invalid. record of United United Jones does Given the Jones age, plea colloquy, we conclude that his acceptance of the waiver provision was knowing and intelligent. However, Jones claim on appeal is that the government acted in bad faith in refusing to file a § 5K1.1 motion, thereby breaching an implied term of the plea agreement, and that he has made the requisite threshold showing which justifies a hearing on the matter in the district court. A valid waiver of appeal rights does not bar consideration of a claim that the government breached Therefore, the the plea agreement. waiver does Cohen, not prevent 459 us F.3d from at reaching 495. the merits of Jones appeal. As the party alleging a breach of the plea agreement, Jones has the burden of showing evidence that a breach occurred. 3 by a preponderance of the United States v. Snow, 284 F.3d 187, 189 (4th Cir. 2000). obligate the defendant government provides to When a plea agreement does not make substantial a § 5K1.1 assistance, motion the if the government s decision not to make a motion may be reviewed only for bad faith or unconstitutional motive. Id. at 190 (citing United States v. Huang, 178 F.3d 184, 188-89 (3d Cir. 1999)). United States, discretion 504 subject to U.S. 181, 185-86 constitutional See also Wade v. (1992) (prosecutor s limits). A good faith decision is one that is based on an honest evaluation of the assistance provided and not on considerations extraneous to that assistance. Huang, 178 F.3d at 189. A showing that the defendant provided substantial assistance is necessary, but not sufficient, to entitle the defendant to relief. at 186-87. The defendant must show that Wade, 504 U.S. the government s decision not to move for a departure was not rationally related to a legitimate government end, to include the cost and benefit that would flow from moving. Id. at 187. In the district court, Jones did not claim that the government acted in bad faith, but requested a hearing in order to obtain further information about the government s decisionmaking process, which evidence of bad faith. defense counsel believed would produce On appeal, Jones maintains that he can make the required showing; however, he presents only speculation that the prosecutor was not able or willing to assess properly 4 the effect of Jones cooperation on the prosecution of other defendants. a In his view, the government decided not to move for departure without having enough information to properly evaluate the effect of his cooperation on other prosecutions. We conclude that Jones has not met his burden. We therefore affirm the district court s judgment. dispense with contentions are oral argument adequately because presented in the the facts We and legal materials before this court and argument would not aid the decisional process. AFFIRMED 5
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