United States of America v. Norman Ricks

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0630n.06
No. 09-5040
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellant,
v.
NORMAN RICKS,
Defendant-Appellee.
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ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF TENNESSEE
Before: BATCHELDER, Chief Judge; MOORE, and COOK, Circuit Judges.
COOK, Circuit Judge. The United States appeals the district court’s decision to sentence
Norman Ricks below the statutory mandatory minimum. Finding no evidence that the government
obligated itself to pursue a downward departure, we reverse the district court’s order denying the
government’s request to withdraw its § 5K1.1 motion, vacate Ricks’s sentence, and remand for
resentencing.
I.
Relying on audio-recorded sales Ricks made to various informants over a three-year period,
the government charged Ricks with five criminal counts related to his distribution of cocaine base.
Ricks signed a written plea acknowledging his guilt and agreeing to provide information about other
criminal activity. The agreement contained a merger clause stating that it “constitute[d] the full and

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complete agreement and understanding between the parties.” Rather than obligating the government
to press for a downward departure from the statutory mandatory minimum sentence under U.S.S.G.
§ 5K1.1, it provided an option that “[a]t the time of sentencing, the United States may bring to the
Court’s attention the nature, extent, and value of the defendant’s forthrightness,” and further
enunciated that “[t]his information will be provided to the Court so that it may be considered in
determining a fair and appropriate sentence under the facts of the case.”
Following Ricks’s guilty plea, the Presentence Investigation Report assigned him an adjusted
offense level of 27 (which included a 3-point reduction for acceptance of responsibility) and a
criminal history category of VI, resulting in an advisory Guidelines range from 130 to 162 months.
Title 21 U.S.C. § 841(b)(1)(A) required the court to impose a minimum sentence of 10 years in
prison unless the government requested a downward departure for substantial assistance under §
5K1.1. The court rescheduled Ricks’s sentencing several times at the urging of both parties because
Ricks continued to provide helpful information, and when Ricks asked the government to file a §
5K1.1 motion, the government agreed.
After filing the substantial assistance motion, however, the government learned that Ricks
misled investigators as to his involvement in a murder. Concluding that Ricks breached one of the
plea agreement’s terms—“to be fully and completely truthful”—the government moved to withdraw
the § 5K1.1 motion. Ricks objected to the withdrawal, arguing that the government bound itself to
pursue the departure, and thus could renege only upon establishing Ricks’s breach by a
preponderance of the evidence. The district court agreed that the written plea agreement did not

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obligate the government to seek the departure. It decided, however, that the parties formed a second,
oral contract after executing the written plea by which the government agreed to press for a
substantial-assistance-based downward departure on Ricks’s behalf.
No record evidence supports the district court’s finding. In fact, neither party so argued. The
court nevertheless discerned a second agreement existed, explaining:
I find that notwithstanding the integration clause in the plea agreement dated January
8th, 2007, that the subsequent course of dealings between Mr. Ricks and the
government, which is evidenced at least by the government’s motion or the filing of
[the] government’s motion for a 5K1.1 substantial assistance departure, and,
presumably, by at least another document which was the Kastigar letter that’s not
present here in the court, evidences that the subsequent dealings . . . between the
government and Mr. Ricks was contractual in nature. . . . [A]nd the contract dealt
with the providing of information relating to other criminal activity between Mr.
Ricks [and] the government. And there was an acceptance and rejection and
adequate consideration or promissory estoppel, but that one of the terms of that
contract, which was partially written and partially oral in nature, was that Mr. Ricks
provide truthful information to the government.
With this the court concluded that the government orally bound itself to pursue the substantial
assistance motion and, therefore, could not withdraw it absent a showing that Ricks breached his
obligation to provide truthful information. In response to the government’s contention that no such
oral agreement existed, the court asked, “Well, then what obligation did Mr. Ricks have to do
anything after execution of the first contract?” Beyond this speculation, the court failed to cite any
evidence to support its factual finding.

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After hearing evidence about the veracity of the information Ricks provided, the court held
that the government failed to prove by a preponderance of the evidence that Ricks breached the plea
agreement, accordingly denied the government’s request to withdraw its substantial assistance
motion, and sentenced Ricks to 100 months in prison—20 months fewer than the statutory
mandatory minimum.
The government appealed, contending that the district court clearly erred when it found,
without any evidentiary support, that a second, oral agreement prevented the government from
withdrawing its substantial assistance motion.
II.
Traditional and well-settled principles of contract law govern our interpretation and
enforcement of plea agreements. United States v. Robison, 924 F.2d 612, 613 (6th Cir. 1991).
“There can be no contract without a ‘meeting of the minds’. Restatement (Second) of Contracts §
17 comment c (1981). Whether or not there was a ‘meeting of the minds’ depends, of course, on
what the parties to the plea agreement intended.” Robison at 614.
The existence of an enforceable plea agreement is a question of fact, which we review for
clear error. United States v. Lukse, 286 F.3d 906, 909 (6th Cir. 2002). If the terms of a plea
agreement are ambiguous, their meaning rests on a determination of the intent of the parties which,
as a question of fact, we review for clear error. Id. Where two permissible views of the evidence
exist, the district court’s choice between them does not constitute clear error. Anderson v. Bessemer

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City, 470 U.S. 564, 573–74 (1985). But if we are “left with the definite and firm conviction that a
mistake has been committed” when viewing the record as a whole, we may hold the district court’s
factual determination clearly erroneous. Harlamert v. World Finer Foods, Inc., 489 F.3d 767, 771
(6th Cir. 2007) (internal quotation marks and citation omitted). If, however, the terms are
unambiguous, their construction is a question of law, which we review de novo. United States v.
Quesada, 607 F.3d 1128, 1131 (6th Cir. 2010).
A. Written Plea Agreement
We first examine the district court’s determination that the alternating voluntary and
compulsory language of the plea agreement—with its “may” present Ricks’s forthrightness to the
court, and its “will” provide information for fair sentencing—did not compel the government to
pursue a downward departure. Where a plea agreement requires the government to seek a downward
departure in exchange for the defendant’s substantial assistance, the government must do so absent
a showing by a preponderance of the evidence that the defendant breached the agreement. Lukse,
286 F.3d at 910–12. But no case stands for the proposition that the language in Ricks’s plea
agreement—which fails to mention a § 5K1.1 motion at all—binds the government to recommend
a departure. Moreover, even if we interpreted the agreement in Ricks’s favor at every turn, it
required the government at most to present information regarding Ricks’s forthrightness to the court
in some form, not necessarily by pressing for a downward departure. The district court correctly
concluded that the written agreement failed to require that the government file or pursue a § 5K1.1
motion.

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B. Contract Modification
We next review the district court’s holding that the parties formed a second, oral contract,
binding the government to its downward departure request unless it could show that Ricks breached
the agreement first. Because no record evidence supports finding that the parties formed an oral
contract, we view the holding as clear error. It seems the district court deduced its existence simply
from Ricks’s continued cooperation after signing his written plea and the government’s decision to
file a downward departure motion. Yet, not even Ricks argued that he had such an oral agreement
from the government. When the district court told Ricks’s attorney that he must convince the court
“that there was either a completely separate subsequent agreement, or . . . somehow get around that
integration clause,” Ricks’s attorney contended only that the government’s filing of a § 5K1.1
motion amended the initial plea agreement’s terms to require the government to advocate for the
departure rather than withdraw its recommendation. As the government notes, if neither party
believed that an oral contract existed, the requisite meeting of the minds could not have occurred.
And the court acknowledged as much when it commented that to enforce the alleged contract, the
court must flesh out its oral terms.
Ricks’s argument that the government’s initial downward departure motion amended the
written plea agreement’s terms also fails. In order for there to be a later, binding modification of
Ricks’s original plea agreement, there would have to be some indication that both parties intended
to create additional obligations. Otherwise, there could be no “meeting of the minds.” Robison, 924
F.2d at 614. The § 5K1.1 motion does not evidence such intent. All it demonstrates is that the

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government decided to exercise its discretion and move for a downward departure. Nothing about
this motion suggests that the government in any way felt bound to file a motion or thought itself
precluded from later withdrawing the motion.
Because no evidence of a second, oral agreement exists and because the government’s filing
of a § 5K1.1 motion cannot suffice to modify Ricks’s written plea, the district court clearly erred
when it found the government obligated to recommend the departure.
III.
The district court correctly held that the written plea agreement did not require the
government to seek a downward departure, but clearly erred when it found that a subsequent contract
modification occurred. Accordingly, we reverse the court’s order denying the government’s request
to withdraw its § 5K1.1 motion, vacate Ricks’s sentence, and remand for resentencing.

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