In general, “[w]e review the district court’s legal interpretation and application of the guidelines de novo and review the court’s factual findings for clear error, giving due deference to the court’s application of the guidelines to the facts.” United States v. Henry, 164 F.3d 1304, 1310 (10th Cir. 1999). Under this standard, “we will not reverse the district court unless the court’s finding was without factual support in the record, or if after reviewing all the evidence we are left with the definite and firm conviction that a mistake has been made.” United States v. Beaulieu, 893 F.2d 1177, 1182 (10th Cir. 1990).
Substantial Assistance Motion
Kovac’s first contention on appeal is that the district court improperly denied his motion to compel the Government to file a substantial assistance motion under USSG §5K1.1 and 18 U.S.C. § 3553(e). As indicated above, Kovac contends that the Government violated its obligation under the plea agreement because its “refusal to file a 5K motion [was] in bad faith or . . . irrational.” Appellant’s Opening Br. at 11.
Section 5K1.1 of the Sentencing Guidelines permits a sentencing court to depart downward from the applicable guideline range “[u]pon motion of the government stating that the defendant has provided substantial assistance in the investigation or prosecution of another person who has committed an offense.” 18 U.S.C. § 3553(e) similarly allows a district court, upon a motion by the government, “to impose a sentence below a level established by statute as minimum sentence so as to reflect a defendant’s substantial assistance in the investigation or prosecution of another person who has committed an offense.”
Under both §5K1.1 and § 3553(e), “[t]he government’s motion is ‘an unequivocal condition precedent . . . to a downward departure by the district court, limiting the court’s authority and giving the government ‘a power, not a duty, to file a [§5K1.1] motion when a defendant has substantially assisted.’” United States v. Cerrato-Reyes, 176 F.3d 1253, 1264 (10th Cir. 1999) (quoting United States v. Lee, 989 F.2d 377, 379 (10th Cir. 1993) and Wade v. United States, 504 U.S. 181, 185 (1992)).3 A prosecutor is granted the sole discretion to decide whether or not to file a substantial assistance motion on the defendant’s behalf. United States v. Courtois, 131 F.3d 937, 938 (10th Cir. 1997). SeealsoUnited States v. Massey, 997 F.2d 823, 824 (10th Cir. 1993) (“Congress wisely or unwisely left the matter of substantial assistance to the prosecutor”). With few exceptions, the prosecutor’s exercise of such discretion is not subject to review by the district courts. Courtois, 131 F.3d at 938.
One exception allows a district court to review the government’s discretionary refusal to file a substantial assistance motion if the defendant makes a “substantial threshold showing” that such refusal was unconstitutional, either because it was based on an unconstitutional motive, such as the defendant’s race or religion, or because it was not rationally related to any legitimate governmental objective. Wade, 504 U.S. at 185-86. SeealsoUnited States v. Duncan, 242 F.3d 940, 947 (10th Cir. 2001). In the proceedings below, Kovac did not assert any constitutional challenges to the Government’s discretionary refusal to file a substantial assistance motion on his behalf, and thus we do not consider the applicability of this exception on this appeal.4 Another exception allows the district court to step in “if ‘the refusal violates an agreement with the government.’” Cerrato-Reyes, 176 F.3d at 1264 (quoting Lee, 989 F.2d at 379)). It is this exception which Kovac invokes.
The question of whether or not the government has breached a plea agreement is a question of law which we review de novo. Courtois, 131 F.3d at 938. Without question, the plea agreement here does not expressly obligate the Government to file a substantial assistance motion.
5 Indeed, Kovac does not assert that the Government was expressly obligated to file a substantial assistance motion on his behalf under the plea agreement. Both below and on appeal, Kovac asserts only that by entering into the plea agreement, a contract, the Government implicitly agreed to act in good faith, limiting its discretion and subjecting its decision-making process to review for “bad faith.”
We recognize that as a general rule of contract law there is an implied obligation of good faith and fair dealing in all contracts. SeeConcrete Spec. v. H.C. Smith Constr. Co., 423 F.2d 670, 672 (10th Cir. 1970) (citing 5 S. Williston, Contracts § 670, at 159 (3rd ed. 1961)). We also recognize the general rule that plea agreements are to be enforced and construed in accordance with traditional contract principles. United States v. Thompson, 237 F.3d 1258, 1260-61 (10th Cir. 2001). Nonetheless, there is a split of authority among the federal circuits regarding whether or not the government’s discretionary refusal to file a substantial assistance motion can be reviewed for bad faith under plea agreements which expressly grant the government sole discretion over a defendant’s entitlement to such a motion. The majority of the federal circuits addressing the issue reject a district court’s review of the prosecutor’s discretionary refusal of a substantial assistance motion for bad faith in such cases,6 while a minority hold that the implied obligation of good faith and fair dealing applies to such plea agreements, allowing the district court to review a prosecutor’s discretionary refusal for bad faith.7
Similarly, the decisions within this circuit are not consistent. Some cases hold that “the district court’s role is limited to deciding whether the government has made its determination [not to file the motion] in good faith.” United States v. Vargas, 925 F.2d 1260, 1266 (10th Cir. 1991).8 Other cases hold that where the government retains its sole discretion under the express terms of the plea agreement it retains the powers otherwise granted it under §5K1.1 and § 3553(e), and thus its discretionary refusal to file a motion is reviewable only for constitutional error, as articulated in Wade. SeeUnited States v. Hawley, 93 F.3d 682, 691 (10th Cir. 1996) (holding that where plea agreement leaves decision within the “sole and exclusive discretion” of the government defendant must demonstrate that government acted with unconstitutional motive and court lacks jurisdiction to review government’s decision where unconstitutional motives have not been alleged, or the defendant has made only “generalized allegations of improper motive”).9
Because we believe that the latter view more accurately reflects the policies announced in Wade limiting our intrusion into prosecutorial discretion over substantial assistance motions,10 as well as the policies and principles announced in other Supreme Court decisions generally limiting our intrusion into a district court’s application of the Sentencing Guidelines, we adopt that view and hold that where a plea agreement expressly grants the government sole discretion over the filing of a substantial assistance motion, a prosecutor’s discretionary refusal to file such a motion may not be reviewed for bad faith. Such plea agreements merely reaffirm the power otherwise granted the prosecutor under §5K1.1 and § 3553(e); they do not give defendants any greater rights, nor do they give the courts a greater power of review. Based on the fact that Kovac challenged the Government’s discretionary refusal to file the substantial assistance motion below solely on the grounds of alleged bad faith, his claim is not subject to any further review on appeal.
Even assuming arguendo, however, that the Government’s discretionary refusal could be reviewed for bad faith under traditional contract principles, we would still affirm the denial of Kovac’s motion, and we would do so regardless of which standard applies to such claims.11 Kovac essentially claims that because he met with Officer Sorrell in Leavenworth, Kansas, and provided a statement, he necessarily provided substantial assistance. He asserts that the government acted in bad faith, and abused its discretion, by refusing to file a substantial assistance motion on his behalf merely because they believed that the information he provided was not useful and they doubted his veracity.12 Kovac further asserts that the government cannot refuse a substantial assistance motion based on the perceived untruthfulness of the defendant, asserting that “there is no requirement in the 5K clause concerning truthfulness.” Appellant’s Opening Br. at 12. This argument defies common sense and the essential purpose of §5K1.1 because a defendant can in no circumstances be said to provide “assistance” to the government, much less “substantial assistance,” if he is not providing truthful information. There is nothing unreasonable in the government considering the perceived veracity of the defendant when deciding whether or not to file a substantial assistance motion on his or her behalf. The district court found, however, that there was “no showing of bad faith” in this case, Tr. of Sentencing Hr’g at 110, and this finding is not clearly erroneous. SeeLee, 989 F.2d at 380 (stating that question of whether government acted in good faith is factual one reviewed for clear error).
Keeping in mind that a district court must give “[s]ubstantial weight . . . to the government’s evaluation of the extent of the defendant’s assistance,” USSG §5K1.1, App. Note 3, a defendant challenging the government’s discretionary refusal to file a substantial assistance motion on the basis of “bad faith” has a heavy burden, and must demonstrate by a preponderance of evidence that the government acted in a patently unreasonable manner, entirely disregarding the assistance provided with the intent of purposely denying him or her the benefit of the substantial assistance motion.13 Kovac did not meet this burden. His claims, both below and on appeal, amount to nothing more than blanket assertions and conclusory allegations that the Government acted inappropriately without any evidence whatsoever of illicit motive or an abuse of discretion by the United States Attorneys Office. We are not persuaded by Kovac’s baseless allegations of bad faith and thus, even if the Government’s discretionary refusal could be reviewed for bad faith, we would still affirm.