United States of America v. Kerry Lamont Howard

NOT RECOMMENDED FOR PUBLICATION
File Name: 08a0015n.06
Filed: January 8, 2008
No. 06-6448
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
KERRY LAMONT HOWARD,
Defendant-Appellant.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
KENTUCKY
Before: SILER, MOORE, and GILMAN, Circuit Judges.
SILER, Circuit Judge. Kerry Lamont Howard appeals his conviction for conspiracy to
distribute cocaine base, arguing that the United States (“Government”) violated the plea agreement
when it refused to move for a downward departure on the sentence under USSG § 5K1.1 (“5K
motion”). For the following reasons, we AFFIRM.
BACKGROUND
In 2006, Kerry Lamont Howard (“Howard”) entered into a written plea agreement (the
“Agreement”) with the Government, in which Howard admitted to selling cocaine to an undercover
informant on three occasions. Under the terms of the Agreement, Howard pled guilty to one count
of conspiracy to distribute cocaine base. The Agreement further provided that the Government
would make a 5K motion if, in its discretion, it determined that Howard provided the Government
with substantial assistance in the investigation or prosecution of other crimes. The district court

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discussed the Agreement and rights with Howard at his rearraignment, after which Howard pled
guilty pursuant to the Agreement.
Subsequent to Howard’s guilty plea, the Government alleged that Howard refused to provide
substantial assistance to the Government. After retaining new counsel, Howard agreed to assist the
Government by testifying before a grand jury. The Government, however, refused this offer, citing
several sources and a Government-administered polygraph indicating that Howard had attempted
to kill an informant in his case. Subsequently, Howard filed a motion to withdraw his guilty plea,
alleging that the Government denied him the opportunity to provide substantial assistance pursuant
to the Agreement.
At Howard’s sentencing hearing, the Government refused to file a 5K motion, and Howard
again argued that the Government breached the Agreement. The district court denied Howard’s
motion to withdraw his guilty plea and set aside the Agreement. The court noted that once Howard
failed the polygraph test, the Government acted within its discretion in refusing to allow Howard to
testify, fearing that he would not testify truthfully. The district court then sentenced Howard to the
Guideline minimum of 262 months.
DISCUSSION
The district court’s determination that the Government did not violate the Agreement is
reviewed de novo. United States v. Villareal, 491 F.3d 605, 608 (6th Cir. 2007). There is no review
for bad faith; rather, because the Agreement allows the Government to exercise discretion in
deciding whether to file a 5K motion, review of the Government’s decision not to file a 5K motion
is limited to an examination of the Government’s motives. Id. Unless the Government had

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unconstitutional motives, it may exercise complete discretion. Id. (“Because [the defendant’s] plea
agreement explicitly grants the government ‘complete discretion’ to determine whether it should
move for a substantial assistance departure, we may review the government’s refusal only for
unconstitutional motives.”). As Howard did not allege that the Government acted with any
unconstitutional motive, the Government did not abuse its discretion.
Howard’s reliance on United States v. Lukse, 286 F.3d 906 (6th Cir. 2002), is misplaced.
Although the plea agreement in Lukse appears similar to the one here, there are several key
distinctions between Lukse and this case. In Lukse, the defendants provided the Government with
assistance and only after receiving the defendants’ assistance did the Government decide that the
defendants lacked the credibility to testify at a trial. Id. at 909. Additionally, in Lukse the plea
agreement bound the Government to certain parameters for determining whether the defendants
provided substantial assistance. Id. Finding that the Government failed to act within those
parameters and failed to prove that the defendants did not provide substantial assistance, we held that
the Government was bound by the plea agreement and was required to file 5K motions. Id. at 914.
The Government was not similarly bound here. Unlike the defendants in Lukse, Howard did
not offer any assistance before the Government determined that he lacked the credibility to testify.
Further, the Agreement did not contain the same parameters as the plea agreement in Lukse. See id.
at 912. Here, the determination of whether Howard provided substantial assistance was within the
sole discretion of the Government. As the Government determined Howard did not render
substantial assistance, it did not abuse its discretion in declining to file a 5K motion on Howard’s

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behalf, and the district court properly denied Howard’s motion to withdraw his plea and set aside the
Agreement.
AFFIRMED.

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