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  • United States v. Baker, 4th Cir. (1998)

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    1) Timothy Baker pled guilty to drug conspiracy and possession charges. He sought a downward departure for substantial assistance or to withdraw his guilty plea, claiming the government breached their plea agreement. 2) The court found that Baker did not provide substantial assistance warranting a downward departure motion, as he gave no information about active drug traffickers and investigators did not use his information. 3) The court also denied withdrawing the plea, as Baker was informed a departure motion was at the government's discretion and required substantial assistance, which he did not show. The appeals court affirmed, finding no error in the rulings.

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    Filed: 1998-12-15 Precedential Status: Non-Precedential Docket: 98-4389

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    1) Timothy Baker pled guilty to drug conspiracy and possession charges. He sought a downward departure for substantial assistance or to withdraw his guilty plea, claiming the government breached their plea agreement. 2) The court found that Baker did not provide substantial assistance warranting a downward departure motion, as he gave no information about active drug traffickers and investigators did not use his information. 3) The court also denied withdrawing the plea, as Baker was informed a departure motion was at the government's discretion and required substantial assistance, which he did not show. The appeals court affirmed, finding no error in the rulings.

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    United States v. Baker, 4th Cir. (1998)

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    1) Timothy Baker pled guilty to drug conspiracy and possession charges. He sought a downward departure for substantial assistance or to withdraw his guilty plea, claiming the government breached their plea agreement. 2) The court found that Baker did not provide substantial assistance warranting a downward departure motion, as he gave no information about active drug traffickers and investigators did not use his information. 3) The court also denied withdrawing the plea, as Baker was informed a departure motion was at the government's discretion and required substantial assistance, which he did not show. The appeals court affirmed, finding no error in the rulings.

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    of 4

    UNPUBLISHED

    UNITED STATES COURT OF APPEALS


    FOR THE FOURTH CIRCUIT
    UNITED STATES OF AMERICA,
    Plaintiff-Appellee,
    v.

    No. 98-4389

    TIMOTHY MICHAEL BAKER,


    Defendant-Appellant.
    Appeal from the United States District Court
    for the District of South Carolina, at Anderson.
    William B. Traxler, Jr., District Judge.
    (CR-96-820, CR-97-1024)
    Submitted: November 17, 1998
    Decided: December 15, 1998
    Before WILLIAMS and MOTZ, Circuit Judges, and
    HALL, Senior Circuit Judge.
    _________________________________________________________________
    Affirmed by unpublished per curiam opinion.
    _________________________________________________________________
    COUNSEL
    J. Tony Serra, Shari L. Greenberger, SERRA, LICHTER, DAAR,
    BUSTAMANTE, MICHAEL & WILSON, San Francisco, California,
    for Appellant. J. Rene Josey, United States Attorney, E. Jean Howard,
    Assistant United States Attorney, Greenville, South Carolina, for
    Appellee.
    _________________________________________________________________

    Unpublished opinions are not binding precedent in this circuit. See


    Local Rule 36(c).
    _________________________________________________________________
    OPINION
    PER CURIAM:
    Timothy Michael Baker appeals his sentence imposed after pleading guilty to one count of conspiracy to possess with intent to distribute methamphetamine, 21 U.S.C. 846 (1994), and one count of
    possession with intent to distribute methamphetamine, 21 U.S.C.
    841(a)(1) (1994). Baker contends the Government breached the plea
    agreement by not moving for a downward departure based upon
    Baker's assistance. Baker also contends the court erred by denying his
    motion to withdraw his guilty plea. Finding no reversible error, we
    affirm.
    In September 1996, Baker was indicted in the Northern District of
    California for distribution of methamphetamine. In October 1996, he
    was indicted in the District of South Carolina for conspiracy to distribute methamphetamine. The California case was transferred to
    South Carolina.
    In an oral plea agreement, Baker agreed to provide complete and
    truthful information. The Government agreed that if Baker provided
    substantial assistance, it would move for a downward departure under
    U.S. Sentencing Guidelines Manual 5K1.1 (1995). The motion for
    a downward departure would have to come at the recommendation of
    the United States Attorneys' Offices in the Northern District of California and the District of South Carolina. Baker was debriefed by federal agents on two occasions, once in California and once in South
    Carolina.
    At the plea hearing, the court reviewed the plea agreement. The
    court informed Baker that it was within the Government's discretion
    to seek a downward departure and the court had little control over that
    discretion. Baker was also informed that he faced a possible life sentence. Baker conceded that no one made any promises as to his sentence.
    2

    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
    3

    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
    4

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