Third Circuit disposition — 02-2278

* Honorable Alan D. Lourie, Circuit Judge for the United States Court of Appeals
for the Federal Circuit, sitting by designation.
NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 02-2278
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UNITED STATES OF AMERICA
vs.
JOSEPH L. SANDERS, III
Appellant.
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ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
(D.C. Criminal No. 01-cr-00101)
District Judge: The Honorable James M. Munley
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Submitted Under Third Circuit LAR 34.1(a)
January 23, 2003
BEFORE: NYGAARD, AMBRO, and LOURIE,* Circuit Judges.
(Filed February 7, 2003 )

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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellant, Joseph Sanders, pleaded guilty to distribution and possession with
intent to distribute methamphetamine in violation of 21 U.S.C. § 841(a)(1). On appeal, he
raises the issues listed below, taken verbatim from his brief. Because we find no merit in
either of them, we will affirm.
I. ISSUES
1. Whether the District Court erred in failing to enforce the cooperation
agreement plea agreement between appellant and the government,
where appellant had provided substantial assistance to the government
and the government failed to move for a 5K1.1 downward departure.
2. Whether the District Court erred in assessing an enhancement to the
sentencing Guideline calculation for the possession of a dangerous
weapon in drug activity pursuant to § 2D1.1(b)(1).
II. DISCUSSION
As to the first issue, the appellant did not argue before the District Court that
the government had acted in bad faith when it declined to file a motion for a sentencing
departure under U.S.S.G. § 5K1.1. Because it was not raised in the District Court, we will
review only for plain error. United States v. Olano, 507 U.S. 725, 730 (1993). Moreover,

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because it is entirely within the government’s discretion whether to file such a motion, we
are empowered only to review their decision for bad faith. United States v. Holman, 168
F.3d 655, 661 (3d Cir. 1999). We conclude that there is absolutely no evidence in this
record that the government acted in bad faith in not filing the motion for a departure based
upon the appellant’s cooperation. The plea agreement required Sanders to provide the
government with all information possessed by him relating to any criminal activity. Here,
the appellant concedes he declined to provide significant information. Thus, the
government was justified in not filing the motion and did not act in bad faith.
On the second issue, we likewise conclude that the District Court did not err
by increasing appellant’s offense level for possession of firearms, pursuant to U.S.S.G. §
2D1.1(b)(1). We review for clear error the District Court’s determination that a weapon
was possessed during the same course of conduct as the offense of conviction. United
States v. Demes, 941 F.2d 220, 223 (3d Cir. 1991). There is evidence that the appellant
knew that one of his co-conspirators was carrying a pistol during their joint drug trafficking
activities. Moreover, appellant had firearms at his residence and in close proximity to
other drug trafficking paraphernalia. These are sufficient acts to come within the “same
course of conduct” as the offensive conviction. Hence, they were properly considered by
Judge Munley as relevant conduct and his decision to raise Sanders’ offense level by two is
both rationally and factually supported. We will affirm.

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_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

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