United States v. Humberto Amezuca ( 2002 )


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  •                    United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 01-2331
    ___________
    United States of America,          *
    *
    Appellee,               *
    * Appeal from the United States
    v.                            * District Court for the
    * Northern District of Iowa.
    Humberto Amezcua, also known as    *
    Antonio Alvarez,                   *
    *
    Appellant.              *
    ___________
    Submitted: December 11, 2001
    Filed: January 14, 2002
    ___________
    Before WOLLMAN, Chief Judge, HANSEN, Circuit Judge, and FENNER,1 District
    Judge.
    ___________
    WOLLMAN, Chief Judge.
    1
    The Honorable Gary A. Fenner, United States District Judge for the Western
    District of Missouri, sitting by designation.
    Humberto Amezcua pled guilty to one count of engaging in a drug trafficking
    conspiracy and one count of money laundering in connection with the conspiracy.
    He appeals from the sentence imposed by the district court.2 We affirm.
    I.
    Amezcua was involved in a conspiracy to distribute methamphetamine,
    cocaine, and marijuana from January 1996 until December 1998. Amezcua’s brother-
    in-law, Shane Lewis, was also involved in the drug trafficking operation. The
    conspiracy involved the distribution of more than 10 kilograms of marijuana, less
    than 5 kilograms of cocaine, and more than 500 grams of methamphetamine. In
    addition, the conspiracy involved the laundering of drug proceeds.
    Amezcua entered into a plea agreement with the government, agreeing to
    provide information on his co-conspirators in exchange for the possibility of a
    downward departure in his sentence. The plea agreement states:
    The United States may, but shall not be required to, make a motion
    pursuant to § 5K1.1 of the United States Sentencing Guidelines
    requesting the court to depart below the sentencing range called for by
    the sentencing guidelines in the event defendant provides “substantial
    assistance.” This decision shall be in the sole discretion of the United
    States Attorney’s Office . . . .
    The United States may, but shall not be required to, make a motion
    pursuant to 18 U.S.C. § 3553(e) allowing the court to depart below the
    minimum mandatory sentence required by statute for any offense to
    which defendant has agreed to plead guilty in the event the defendant
    provides “substantial assistance.” This decision shall be in the sole
    discretion of the United States Attorney’s Office . . . .
    2
    The Honorable Michael J. Melloy, United States District Judge for the
    Northern District of Iowa.
    -2-
    It is understood and agreed that no motion for downward departure shall
    be made, under any circumstances, unless the defendant’s cooperation
    is deemed “substantial” by the United States Attorney’s Office and
    defendant has fully complied with all provisions of this plea agreement.
    The United States has made no promise, implied or otherwise, that a
    departure motion will be made or that defendant will be granted a
    “departure” for “substantial assistance.” Further, no promise has been
    made that a motion will be made for departure even if the defendant
    complies with the terms of this agreement in all respects, but has not, in
    the assessment of the United States Attorney’s Office, provided
    “substantial assistance.”
    (emphasis in original). This agreement was drafted by the government and signed by
    the defendant.
    Amezcua provided the government with information concerning the activities
    of his brother-in-law, Shane Lewis, and other co-conspirators in the form of
    debriefings and testimony before the grand jury. However, before Lewis could be
    indicted, he died.
    During the sentencing hearing, the government advised the district court that
    it would not be filing a substantial assistance motion. In light of Amezcua’s
    attempted cooperation, the court imposed a sentence of 151 months, the bottom of the
    sentencing range.
    On appeal, Amezcua argues that the government’s refusal to move for
    downward departure violated the plea agreement and was irrational and in bad faith.
    -3-
    II.
    “Issues concerning the interpretation and enforcement of a plea agreement are
    issues of law, which we review de novo.” United States v. Johnson, 
    241 F.3d 1049
    ,
    1053 (8th Cir. 2001) (citing United States v. Van Thournout, 
    100 F.3d 590
    , 594 (8th
    Cir. 1996)). The government’s argument that Amezcua waived his right to appeal its
    decision not to file a substantial assistance departure motion by not challenging the
    decision in the district court is without merit. The plea agreement itself was before
    the court, and the issue was raised when defense counsel brought the defendant’s
    assistance to the court’s attention. 
    Johnson, 241 F.3d at 1052
    (citing Van 
    Thournout, 100 F.3d at 594
    ).
    Amezcua’s assertion that the government’s failure to file a motion for
    downward departure violated the terms of the plea agreement is without merit. The
    plea agreement expressly states that the decision whether or not to file a motion for
    departure was entirely within the discretion of the government. When the
    government expressly reserves discretion, we will perform only a limited review of
    the decision not to file a motion for downward departure for substantial assistance.
    United States v. Marks, 
    244 F.3d 971
    , 975 (8th Cir. 2001) (citing Wade v. United
    States, 
    504 U.S. 181
    , 185-86 (1992)). This discretionary decision may be challenged
    “only if the defendant makes a ‘substantial threshold showing’ of prosecutorial
    discrimination or irrational conduct.” United States v. Romsey, 
    975 F.2d 556
    , 558
    (8th Cir. 1992) (quoting 
    Wade, 504 U.S. at 186
    ). Without such a showing, a
    defendant is not entitled to any remedy or even an evidentiary hearing. 
    Wade, 504 U.S. at 186
    .
    Amezcua has not alleged that the government refused to file a motion for
    constitutionally impermissible reasons, such as race or religion. Rather, he argues
    that Shane Lewis’s death was a matter over which he had no control, negating the
    government’s conclusion that Amezcua did not render substantial assistance because
    -4-
    it did not lead to Lewis’s indictment. Although Amezcua may have provided
    assistance to the extent of his abilities, whether the assistance provided was
    “substantial” was for the government to determine.
    In light of his failure to make a substantial threshold showing that the refusal
    to file a downward departure motion was based upon a constitutionally impermissible
    motive, Amezcua is entitled to no relief.
    The sentence is affirmed.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
    -5-