FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                        PUBLISH                        April 2, 2019
                                                                   Elisabeth A. Shumaker
                      UNITED STATES COURT OF APPEALS                   Clerk of Court

                                   TENTH CIRCUIT



 UNITED STATES OF AMERICA,

                Plaintiff - Appellee,
 v.                                                          No. 19-601
 E.F.,

                Defendant - Appellant.




Before TYMKOVICH, Chief Judge, O’BRIEN and MATHESON, Circuit
Judges.


TYMKOVICH, Chief Judge.




                                   I. Background

         E.F. pleaded guilty to a number of federal offenses pursuant to a plea

agreement. Under the terms of the plea agreement, the government agreed that it

would recommend a sentence below the one recommended by the United States

Sentencing Guidelines.

         As a result of that agreement, the district court significantly reduced E.F.’s

advisory guidelines range to approximately half the term of imprisonment
recommended by the Guidelines. E.F. was ultimately sentenced to the mandatory

minimum sentence. The district court noted it would have preferred to sentence

E.F. to a lesser sentence, but it was unable to do so in light of the government’s

refusal to file a motion for a further reduction pursuant to 18 U.S.C. § 3553(e),

which authorizes the district court to impose a sentence below the statutory

mandatory minimum for substantial assistance.

      The district court first considered whether United States v. Doe, 

(10th Cir. 2017), applies. In Doe, we held that in certain circumstances, the

government’s decision not to file a substantial-assistance motion pursuant to

USSG § 5K1.1 is subject to good-faith review. The court concluded that while

Doe applies, E.F. failed to satisfy the Doe requirements that would trigger good-

faith review by the district court. Thus, the plea agreement was not subject to

good-faith review.

      As we explain, we agree with the district court’s analysis under Doe and

affirm its conclusion that the government’s decision not to file a § 3553(e) motion

is not subject to good-faith review.

                                  II. Analysis

      E.F. raises three arguments for reversal. First, E.F. contends that the

government breached the covenant of good faith and fair dealing implied in the

plea agreement when it refused to file a § 3553(e) motion. Similarly, E.F.


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contends the government’s refusal was not rationally related to a legitimate

government end and that enforcing the plea agreement would result in a

miscarriage of justice. Finally, E.F. argues that the sentence was substantively

unreasonable.



      A. Application of Doe

      Courts “review de novo whether the [g]overnment has breached a plea

agreement.” United States v. Rodriguez-Rivera, 

, 1212 (10th Cir.

2008). While the government initially argued the standard of review is plain error

because E.F. did not sufficiently allege a breach of the plea agreement in the

district court, the government did not reassert this argument following the district

court’s decision to apply Doe. Furthermore, as discussed below, E.F. sufficiently

raised the good-faith issue, and we therefore review de novo the district court’s

analysis under Doe.

      Under the terms of the plea agreement in Doe, the government was

obligated to exercise its discretion in determining whether to file a substantial-

assistance motion as permitted by USSG § 5K1.1 or § 3553(e). The government

exercised its discretion and declined to file either motion. But the defendant

argued the government failed to exercise its discretion in good faith, thus raising

the question of whether the government’s discretionary decisions can be reviewed



                                         -3-
for breach of contract. We agreed a duty of good faith applied to plea

agreements. To be entitled to good-faith review in district court, (1) the

defendant must first allege that the government acted in bad faith; (2) the

government can then rebut the allegation by providing justifications for its refusal

to file the motion; and (3) the defendant must then produce evidence “giving

reason to question the justification” advanced by the government. 

. If the defendant succeeds at step three, the court will proceed to a merits

determination as to whether the government breached the plea agreement.

       But this case is different from Doe because it only involves the

government’s discretionary decision to refuse to file a substantial-assistance

motion under § 3553(e). While the government here refused to file a substantial

assistance motion pursuant to the statute, it did move for a sentence reduction

pursuant to § 5K1.1 of the Guidelines. E.F. argues the government should have

moved for both a § 5K1.1 reduction and a § 3553(e) reduction.

      At a minimum, Doe stands for the proposition that if a prosecutor files no

motion at all for substantial assistance, then the district court may conduct good-

faith review if certain conditions are met. E.F. argues Doe stands for more—Doe

means prosecutorial discretion to file neither, either, or both motions is always

subject to good-faith review if the additional conditions are met.




                                         -4-
      Doe states “a prosecutor’s discretionary refusal to file a substantial-

assistance motion”—so the question is whether review is only triggered when a

prosecutor refuses to file either type of motion, as was the case in Doe, or if

review can also be triggered when a prosecutor files one type but refuses to file

the other type of motion. 

. The district court extended Doe

to include the latter. The district court said the good-faith review outlined in Doe

applies in cases where the prosecutor declines to file one type of substantial-

assistance motion—even if the prosecutor files another type of substantial-

assistance motion. This makes sense given that a § 3553(e) motion crucially

allows a district court to go below the statutory mandatory minimum. According

to the district court, this difference compels good-faith review when the

government could file both a § 5K1.1 and a § 3553(e) motion but only chooses to

file a § 5K1.1 motion. 1 For purposes of this appeal, we assume Doe applies.

      In applying Doe’s three-step analytical framework, the district court

assumed E.F. satisfied the first step. But the district court found persuasive the

government’s explanation for refusing to file a § 3553(e) motion—that

prosecutors discovered evidence of ongoing criminal activity. Thus, E.F. failed to

rebut the government’s explanation at the third step. Because E.F. did not rebut


      1
       Although it is unlikely a defendant would seek good-faith review if the
government filed a § 3553(e) motion but declined to file a § 5K1.1 motion, the
same principles would apply.

                                          -5-
the government’s explanation, the district court found that it need not proceed to

a full merits review of the government’s good faith.

      E.F. argues that the district court improperly applied Doe because the

government failed to provide a facially plausible explanation for its failure to file

a § 3553(e) motion. Even if it did, E.F. adequately rebutted the presumption and

the court should hold an evidentiary hearing on the allegations.

      Before addressing this argument, we turn first to the government’s

argument that E.F. failed to preserve the bad-faith breach theory in the district

court. 

. In the initial district court proceedings, E.F.

objected to the government’s failure to file a motion under § 3553(e) in the

response to the government’s § 5K1.1 motion. While E.F. did not use the words

“breach,” or accuse the government of operating in “bad faith,” it was clearly

argued that the government had an obligation to determine in good faith how to

reward substantial assistance. The parties discussed the nature of E.F.’s

substantial assistance and acknowledged that the government only moved for a

§ 5K1.1 motion. After the discussion, the district court expressed its displeasure

with the government’s failure to file a § 3553(e) motion for downward departure.

      All that is required to preserve an issue for appeal is that the party

“inform[s] the court [of] the party’s objection to the court’s action and the

grounds for that objection.” Fed. R. Crim. P. 51(b). E.F. responded to the


                                         -6-
government’s § 5K1.1 motion, the parties discussed the motions at sentencing,

and the district court acknowledged that the government’s failure to file a

§ 3553(e) motion was problematic. This all indicates that E.F. properly raised the

issue in the district court. To find otherwise would promote form over

substance—rather, the sole question is “whether the district court was adequately

alerted to the issue.” United States v. Harrison, 

, 763 (10th Cir.

2014). Because the district court was aware E.F. thought the government failed to

act in good faith, we find that E.F. sufficiently alleged bad faith, satisfying the

first part of the Doe analysis. See Chalfonte Condo. Apartment Ass'n, Inc. v. QBE

Ins. Corp., 

, 1225 (11th Cir. 2012) (noting that the absence of good

faith is bad faith).

       The second issue is whether the government presented a plausible

explanation for not filing a § 3553(e) motion. The court agreed that the

government had reason to believe E.F. was not completely candid in discussions

leading up to the sentencing hearing. Specifically, the court concluded E.F. did

not reveal ongoing criminal activity related to the federal charges. While the exact

details of what the government knew or did not know when it entered into the

plea agreement are not entirely clear, it is clear that—even after the plea

agreement was signed—the government continued to uncover more evidence of




                                          -7-
E.F.’s wrongdoing. The government, therefore, provided a plausible justification

for its decision not to move for a downward departure under § 3553(e).

      The government expected full cooperation, which is why it offered to move

for departures under both § 3553(e) and § 5K1.1. The parties do not dispute the

fact that E.F. substantially cooperated, and the government admits the cooperation

was instrumental in their investigation. But full cooperation surely requires

disclosing valuable information, particularly about ongoing criminal activity. The

government had discretion to decide whether to file a § 3553(e) motion. E.F. did

cooperate partially with officials, but the evolving standards of candor brought

into question E.F’s credibility as a potential witness. Accordingly, the

government chose to file a § 5K1.1 motion rather than a § 3553(e) motion.

      E.F. claims the doctrine of judicial admissions prevents the government

from justifying the prosecutor’s decision not to file a § 3553(e) motion because

the government failed to raise the justifications until after the district court

initially sentenced E.F. “Judicial admissions are formal admissions . . . which

have the effect of withdrawing a fact from issue and dispensing wholly with the

need for proof of the fact.” Guidry v. Sheet Metal Workers Int'l Ass'n, Local No.

9, 

, 716 (10th Cir. 1993), abrogated by Estate of Cummings v. Cmty.

Health Sys., Inc., 

(10th Cir. 2018). They are “formal, deliberate

declarations which a party or his attorney makes in a judicial proceeding for the


                                          -8-
purpose of dispensing with proof of formal matters or of facts about which there

is no real dispute.” U.S. Energy Corp. v. Nukem, Inc., 

, 833 n.4

(10th Cir. 2005). Judicial admissions are not just any statements made before the

court.

         The government’s proffered justifications at sentencing were not

“deliberate declarations” and were not about facts “about which there is no real

dispute.” 

n.4. The government offered several reasons

why it did not file a § 3553(e) motion, but it did so without the benefit of Doe and

only in response to E.F.’s suggestion of lack of good faith. Judicial admissions

more appropriately refer to “admissions in the pleadings” that “are binding on the

parties.” Mo. Hous. Dev. Comm’n v. Brice, 

, 1315 (8th Cir. 1990).

Discussions at sentencing, particularly on unresolved legal questions, differ from

judicial admissions in the pleadings. See Martinez v. Bally’s La., Inc., 

, 476 (5th Cir. 2001) (“A statement made by counsel during the course of trial

may be considered a judicial admission if it was made intentionally as a waiver,

releasing the opponent from proof of fact.”). After Doe was decided, the

government raised the justifications to satisfy its burden to show why it did not

file a § 3553(e) motion. 2


         2
        In fact, E.F. benefitted from the government’s decision not to disclose the
lack of candor. Disclosure of the investigation of ongoing criminal activity might
                                                                      (continued...)

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      Finally, the third step of the Doe analysis requires E.F. to provide evidence

calling into question the government’s justifications. E.F. argues the government

knew of the ongoing criminal activity before the plea agreement was signed.

According to E.F., because the government represented that a § 3553(e) motion

was possible—even with knowledge of the ongoing criminal activity—the

government’s explanations fall short of the requisite standard.

      We evaluate the plea agreement “in light of the defendant’s reasonable

understanding of the promise at the time of the guilty plea.” United States v.

Rodriguez-Delma, 

, 1250 (10th Cir. 2006). At the time the plea

agreement was signed, the government was still investigating ongoing criminal

activity. In the plea agreement, E.F. agreed to provide full, complete, and truthful

cooperation. But E.F. admitted to failing to disclose the ongoing criminal

activity, which was fully discovered after the plea agreement was signed. Even

though we now know the ongoing criminal activity never materialized beyond the

planning stage, the government had reason not to fully reward E.F. by filing two

motions. E.F. does not provide any evidence beyond the initial discovery of the

criminal activity that would call the government’s justifications into question.




      2
        (...continued)
have undermined the government’s argument in favor of a § 5K1.1 motion and led
the district court to deny the motion.

                                        -10-
      Ultimately, under the Doe analysis, E.F.’s allegations do not trigger good-

faith review of the plea agreement. While E.F. successfully alleged that the

government breached the plea agreement, the government provided adequate

justifications that E.F. failed to rebut.

      Therefore, the government’s discretionary refusal to file a § 3553(e)

motion, in addition to its § 5K1.1 motion, is not subject to good-faith review.

      B. Motion to Enforce Appellate Waiver

      The government asks us to enforce E.F.’s waiver of the right to appellate

review if we agree the plea agreement was not breached under Doe.

      We ordinarily enforce appeal waivers that are entered knowingly and

voluntarily. Our review considers “(1) whether the disputed appeal falls within

the scope of the waiver of appellate rights; (2) whether the defendant knowingly

and voluntarily waived his appellate rights; and (3) whether enforcing the waiver

would result in a miscarriage of justice.” United States v. Hahn, 

,

1325 (10th Cir. 2004).

      All three Hahn factors are met here. The plea agreement clearly stated that

E.F. “knowingly and voluntarily . . . waives the right to directly appeal the

conviction and sentence,” and E.F. confirmed an understanding of the agreement

at the plea hearing.




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      As to the third factor—miscarriage of justice—E.F. argues the

government’s concession about substantial assistance and its failure to follow

through with its promise for leniency at sentencing establishes a miscarriage of

justice. E.F. relies on United States v. Lukse, 

(6th Cir. 2002), where

the court held the government was required to file a substantial assistance motion

once it determined substantial assistance was rendered. In that case, the

government stated in the plea agreement that it would file a substantial assistance

motion if, in its discretion, it determined the defendant rendered substantial

assistance. 

E.F. argues securing a guilty plea that includes a waiver of

appeal in exchange for an illusory promise affects the fairness and integrity of the

plea agreement process. But Lukse is distinguishable. In this case, the

government, in fact, filed a substantial-assistance motion under

§ 5K1.1—just not the kind of additional substantial-assistance motion E.F.

wanted under § 3553(e). Furthermore, the issue in Lukse was not whether the

appellate waiver was enforceable, but whether the court could review the

government’s failure to file a downward departure. Lukse does not speak to the

waiver issue. Since we have concluded the government’s refusal to file an

additional motion for a reduced sentence is not subject to good-faith review, E.F.

cannot meet the third element of Hahn.




                                         -12-
      In sum, a within-guidelines sentence is not a miscarriage of justice. Rita v.

United States, 

, 347 (2007) (holding that a within-guidelines

sentence is presumptively reasonable). E.F. was sentenced to the mandatory

minimum term of imprisonment as sanctioned by Congress, which falls directly

within the applicable guidelines range. E.F. gives no other reason why the plea

agreement was “otherwise unlawful” or seriously impacted “the fairness, integrity

or public reputation of judicial proceedings.” 

.

Therefore, the appellate waiver is enforceable, and we grant the government’s

motion.

                                III. Conclusion

      For the reasons stated above, we affirm the district court’s finding that the

plea agreement is not subject to good-faith review under Doe. Because the

application of Doe does not trigger good-faith review, we conclude the

government was within its discretion in not filing a § 3553(e) motion. Thus,

E.F.’s only remaining claim is that the sentence imposed is substantively

unreasonable. The sentence was within the guideline range, so this appeal falls

within the scope of the appellate waiver, which was made knowingly and

voluntarily. We therefore grant the government’s motion and enforce the

appellate waiver.




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