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United States v. Baker, 4th Cir. (1998)
United States v. Baker, 4th Cir. (1998)
No. 98-4389
Baker subsequently moved for downward departure or in the alternative, a withdrawal of the guilty plea. Baker contended that the Government refused to move for downward departure and that such
refusal was arbitrary, in bad faith, and not rationally related to promoting any legitimate government end. Baker claimed that he named
his sources, promised to testify before a grand jury and at trial, and
would do everything required by the Government in this regard.
The court held a hearing on Baker's motion at which the Government offered the testimony of FBI Agent James Rooney. Rooney testified that Baker did not provide any information concerning persons
still active in the drug trade and that he was not aware of any information provided by Baker that was being used in any investigation. The
Government therefore asserted that Baker had not provided substantial assistance. The court found that the Government's determination
that information provided by Baker was not substantial was reasonable and that the plea agreement was not violated by the Government's refusal to move for a downward departure. The court thus
denied Baker's motion.
If the Government uses the possibility of moving for a 5K1.1
downward departure as an inducement to enter into a plea agreement,
the court must determine whether the defendant satisfied his contractual obligations. See United States v. Conner , 930 F.2d 1073, 1075
(4th Cir. 1991). Because this is a factual finding, we review for clear
error. See id. at 1076-77. The defendant bears the burden of proving
by a preponderance of the evidence that he provided substantial assistance. See id. at 1076.
Under USSG 5K1.1, the Government may move for a downward
departure if the defendant provides substantial assistance in the investigation or prosecution of another person who has committed an
offense. Baker contends that he provided truthful, reliable information
and was willing to do whatever the Government wanted, including
wearing a wire during drug deals or testifying before a grand jury and
at trial. However, a defendant who cooperates truthfully and fully is
not necessarily providing substantial assistance. See United States v.
Wallace, 22 F.3d 84, 87 (4th Cir. 1994). Furthermore, Baker did not
have any evidence that he actually provided substantial assistance in
the investigation or prosecution of other persons. He did not testify
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for the Government before a grand jury or at trial. Nor was there any
evidence that his information assisted an ongoing investigation or
prosecution. We therefore conclude that the court did not clearly err
in finding no violation of the plea agreement.
We also find that the court did not abuse its discretion in denying
Baker's motion to withdraw his guilty plea. See United States v.
Sparks, 67 F.3d 1145, 1150 (4th Cir. 1995) (court's denial of a defendant's motion to withdraw guilty plea reviewed for abuse of discretion). Baker contends that he should have been permitted to withdraw
his guilty plea because he was promised that the Government would
move for a downward departure in exchange for his plea. However,
at the plea hearing, Baker was informed that a 5K1.1 motion was
within the discretion of the Government. It was also made clear that
the 5K1.1 motion would only be filed if he provided substantial
assistance and only at the recommendation of both United States
Attorneys' Offices.
A court may permit a defendant to withdraw a guilty plea for "any
fair and just reason." See Fed. R. Crim. P. 32(e). A fair and just reason for withdrawing a plea may be one that essentially challenges the
fulfillment of a promise or condition emanating from the proceeding.
See United States v. Lambey, 974 F.2d 1389, 1394 (4th Cir. 1992).
Baker was entitled to a 5K1.1 motion only if the Government concluded that he provided substantial assistance. Baker fails to demonstrate that he in fact provided substantial assistance; therefore, the
Government was not obligated to file a 5K1.1 motion under the plea
agreement. Thus, Baker fails to establish that a promise by the Government was unfulfilled.
Based on the foregoing, we affirm Baker's conviction and sentence. We dispense with oral argument because the facts and legal
conclusions are adequately presented in the materials before the court
and argument would not aid in the decisional process.
AFFIRMED
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