*This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**The Honorable Tom Stagg, United States District Judge for the Western District of Louisiana, sitting by designation.
1Kovac also pled guilty to the possession of a firearm while being addicted to a controlled substance in violation of 18 U.S.C. § 922(g)(3), admitting that he was a user of, and addicted to, methamphetamine, and that he was found in possession of a Baretta 9mm handgun (which had been involved in interstate commerce) at the time of his arrest. Plea Agreement at ¶ 6, Ex. A to Def.’s Pet. to Enter Plea of Guilty and Order Entering Plea, R. Vol. I, Doc. 24. However, Kovac does not appeal any aspect of his conviction or sentence on the firearm possession offense.
2On the same day, DEA officers stopped another individual who was seen leaving Kovac’s residence and who was found to be in possession of methamphetamine. The man indicated that he had purchased the methamphetamine at the Kovac residence, and that he purchased drugs at that residence on at least nine different occasions.
3Although Cerrato-Reyes involved claims under §5K1.1, and not § 3553(e), the analysis is the same under both provisions. United States v. Duncan, 242 F.3d 940, 944 n. 5 (10th Cir. 2001).
4For the first time on appeal Kovac attempts to raise a constitutional challenge, asserting that the Government’s refusal to file a substantial assistance motion was not rationally related to any legitimate governmental end, and relying on Duncan, which was decided during the pendency of this appeal. Ordinarily, we will not consider an issue on appeal that was not raised below. Walker v. Mather, 959 F.2d 894, 896 (10th Cir. 1992). Although we have the discretion to consider new arguments based on “changes in the law arising during the pendency of the appeal,” Anixter v. Home-Stake Prod. Co., 77 F.3d 1215, 1222 (10th Cir. 1996), we decline to exercise such discretion in this case because (i) the standard relied upon by Kovac, and recognized by Duncan, was articulated through Wade as early as 1992, (ii) there is no evidence in the record to support Kovac’s claims that the government’s decision was irrational, and (iii) Kovac made no showing, much less a “substantial threshold showing,” that the Government’s discretionary refusal was unconstitutional. Indeed, Kovac’s only claim on appeal is that the Government’s discretionary refusal in this case did not further the legitimate governmental interests specifically articulated in Duncan, but in that case we neither purported to provide an exhaustive list of legitimate governmental ends, nor suggested in any way that the ends specifically articulated therein were the only ones the government could ever rely upon.
5We apply general principles of contract law when defining the government’s obligations under a plea agreement, looking to the express language and construing any ambiguities against the government as drafter. United States v. Brye, 146 F.3d 1207, 1210 (10th Cir. 1998). As with all contracts, we interpret plea agreements by giving effect to their plain and unambiguous language, giving due consideration to a defendant’s reasonable understandings at the time. United States v. Bunner, 134 F.3d 1000, 1003 (10th Cir. 1998). As quoted above, the plain language of Section 2(e) of the plea agreement in this case merely left open only the possibility of a substantial assistance motion. It did not obligate the Government to file a motion, “expressly leaving the decision to file such a motion in the sole [opinion] of the government.” Courtois, 131 F.3d at 939. While the plea agreement could have limited the discretion otherwise granted to the government under §5K1.1 and § 3553(e), Lee, 989 F.2d at 380, it clearly did not do so.
6SeeUnited States v. Anderholt, 87 F.3d 740, 742 (5th Cir. 1996) (“If the Government retains sole discretion to file the motion [under a plea agreement], its refusal to file is reviewable only for unconstitutional motives.”); United States v. Forney, 9 F.3d 1492, 1502 (11th Cir. 1993) (holding that where government retains discretion to file substantial assistance motion in plea agreement “courts are precluded from intruding into prosecutorial discretion” unless there is “an allegation and a substantial showing that the prosecution refused to file a substantial assistance motion because of a constitutionally impermissible motivation”); United States v. Romsey, 975 F.2d 556, 558 (8th Cir. 1992) (holding that where defendant’s “carefully-worded plea agreement preserved the government’s discretion not to file a substantial assistance motion” defendant must make a “substantial threshold showing that the prosecutor’s refusal . . . was based on a constitutionally impermissible motive”); United States v. Burrell, 963 F.2d 976, 984 (7th Cir. 1992) (stating that where government retains discretion to file substantial assistance motion under plea agreement government is not required to file a motion and its discretionary refusal can be reviewed only for constitutional violation, not “arbitrariness”); United States v. Sims, No. 92-5116, 1992 WL 190909, at *3 (4th Cir. Aug. 11, 1992) (holding that where plea agreement leaves discretion with the government, “the government made no promise to move for the departure based on substantial assistance, and, absent such a promise, the government has discretion, within constitutional limits, whether to do so”).
7United States v. Issac, 141 F.3d 477, 483 (3rd Cir. 1998) (applying basic contract principles and holding that “a district court is empowered to examine for ‘good faith’ a prosecutor’s refusal to file a §5K1.1 motion pursuant to a plea agreement that gives the prosecutor ‘sole discretion’ to determine whether the defendant’s assistance was substantial”); United States v. Jones, 58 F.3d 688, 690-91 (D.C. Cir. 1995) (holding that although plea agreement gives government sole discretion in determining whether or not to file a substantial assistance motion, the plea agreement “provides additional protection” and, “[l]ike all contracts, it includes an implied obligation of good faith and fair dealing”); United State v. Rexach, 896 F.2d 710, 714 (2nd Cir. 1990) (stating that implied covenant of good faith and fair dealing principles apply to plea agreements retaining government’s sole discretion over substantial assistance motions), aff’d in dicta, United States v. Ming-He, 94 F.3d 782, 787 (2nd Cir. 1996).
8SeealsoCerrato-Reyes, 176 F.3d at 1264; Lee, 989 F.2d at 380; United States v. Crocklin, No. 98-3186, 1999 WL 41074, at *1 (10th Cir. Feb. 1, 1999); United States v. Thompson, No. 97-3172, 1998 WL 544313, at *2 (10th Cir. Aug. 26, 1998); United States v. Walton, No. 97-3138, 1998 WL 544310, at *2 (10th Cir. 1998).
9SeealsoUnited States v. Berger, 251 F.3d 894, 910 (10th Cir. 2001); United States v. Webb, No. 99-5189, 2000 WL 1596108, at *2 (10th Cir. Oct. 26, 2000).
10Those cases within this circuit reaching the opposite conclusion and allowing district courts to review the government’s discretionary refusal to file substantial assistance motions under a plea agreement for “bad faith” do so in reliance upon the holding first articulated in Vargas. See, e.g., Lee, 989 F.2d at 380 (citing United States v. Robinson, 978 F.2d 1554, 1569 (10th Cir. 1992) (citing Vargas, 925 F.2d at 1266)). However, Vargas was decided prior to Wade, and these later cases simply do not recognize the ways in which Wade has altered the landscape in this area of the law.
11We have never fully articulated the standard for “bad faith” in this context. Some circuits hold (i) that a defendant is required to make a prima facie showing of bad faith, (ii) that the government must then come forth with a good faith explanation for its decision, and (iii) that the defendant then bears the ultimate burden of proving that the government’s reasons were inadequate or merely pretextual. See, e.g., Issac, 141 F.3d at 484 (citing United States v. Imtiaz, 81 F.3d 262, 264 (2nd Cir. 1996)) (adopting a standard of proof and persuasion for cases involving claims that the government refused substantial assistance motions in bad faith). We need not accept or reject any one standard at this time, however, because regardless of what possible standard may be applied, Kovac presented absolutely no compelling evidence of bad faith, either below or on appeal.
12On appeal, Kovac asserts that the government cannot refuse a substantial assistance motion merely because the government found the information provided to be useless to its investigation, relying primarily on an analogy to 18 U.S.C. § 3553(f)(5), a provision which expressly renders the usefulness of the information provided by a defendant irrelevant when a district court is assessing whether or not to depart from the Sentencing Guidelines in favor of a lower statutory minimum sentence. Kovac’s analogy is flawed, however, because §5K1.1 and § 3553(e) simply do not contain the language Kovac relies upon from § 3553(f), and § 3553(f) and its counterpart USSG §5C1.2 are fundamentally distinct provisions that have absolutely no application in this case. SeeUnited States v. Acosta-Olivas, 71 F.3d 375, 379 (10th Cir. 1995) (“Section 5K1.1 [and § 3553(e)] concerning substantial assistance operate very differently from §5C1.2 [and § 3553(f)(5)].”). SeealsoUnited States v. Maduka, 104 F.3d 891, 895 (6th Cir. 1997) (observing that “sections 5C1.2 and 5K1.1 perform distinct functions”).
13SeegenerallyIssac, 141 F.3d at 484 (concluding that defendant must show that government did not base its decision on “an honest evaluation of the assistance provided,” but inappropriately considered factors “extraneous to the decision”); United States v. Doe, 170 F.3d 223, 225-26 (1st Cir. 1999) (explaining that a claim of bad faith requires more than a showing of mere unreasonableness or arbitrariness); Black’s Law Dictionary 127 (5th ed. 1979) (stating that “bad faith” is “not simply bad judgment or negligence,” but “implies the conscious doing of a wrong because of dishonest purpose or moral obliquity”). SeealsoLampkin v. Int’l Union, United Auto., Aerospace and Agric. Implement Workers of Am. (UAW), 154 F.3d 1136, 1144 (10th Cir. 1998) (stating that in claim that union breached duty of fair representation, bad faith requires a showing that the challenged activity was “so far removed from reasonable as to be wholly irrational or arbitrary”).
14Specifically, Officer Sorrell testified that in his professional opinion the bomb, together with the warning devices found on Kovac’s premises, were apparently intended as a means of destroying evidence in the event that a police raid on Kovac’s lab appeared imminent.
15Kovac argues that Dickerson is distinguishable because the defendant in that case was convicted of “controlling a building and making it available for use for the purpose of illegal drug activity,” a crime that, by its very nature, “implicated the illegal use of the entire residence.” Appellant’s Reply Br. at 1-2. However, it was not the crime charged that was important in Dickerson, but the fact that the crime implicated the entire residence. 195 F.3d at 188. In Kovac’s case, although a manufacturing charge does not implicate the illegal use of an entire residence by its very nature, there is sufficient evidence in the record demonstrating that the entire Kovac residence was in fact used in furtherance of his illegal manufacturing activity.
16Kovac also asserts that because the bomb “was not easily transported or carried” like a firearm, it was not “amenable to use in drug trafficking.” Appellant’s Opening Br. at 9. We note that while §2D1.1(b)(1) specifically references “firearms,” it applies equally to any dangerous weapon used in the commission of an applicable offense, regardless of whether or not the weapon is a “mobile” weapon, such as a firearm. Moreover, although we make no judgment about whether or not the mobility of a weapon may be relevant in cases involving the actual transportation of drugs, we believe that because Kovac was convicted of attempted manufacturing, a drug crime that did not necessarily involve the actual transport or movement of drugs, the mobility or immobility of the bomb is entirely irrelevant in this case.
17Section 4A1.3 allows a departure “[i]f reliable information indicates that the criminal history category does not adequately reflect the seriousness of the defendant’s past criminal conduct or the likelihood that the defendant will commit other crimes. . . .”