UNITED STATES of America, Plaintiff-Appellee, v. Robert B. ANTHONY, AKA Robert A. Brady, Defendant-Appellant

We must decide whether Anthony’s plea agreement requires that he provide substantial assistance to the government in exchange for its promise to make a motion for a downward departure pursuant to section 5K1.1 of the Sentencing Guidelines.

BACKGROUND

Anthony was indicted and charged with four separate drug offenses. He agreed to plead guilty to one count of cocaine distribution in exchange for a dismissal of the remaining charges. He also agreed to cooperate with authorities in exchange for the government’s promise to make a motion for a downward departure pursuant to U.S.S.G. § 5K1.1, the substantial assistance guideline.

Anthony was released pending sentencing to allow time for him to fulfill the conditions of the plea agreement. During that interim he provided some information to the government. But he also violated the conditions of his release and the law, having tested positive for cocaine during that time. He also failed to appear for a subsequent drug test requested by his probation officer.

Before sentencing, the government evidently indicated that it did not intend to make a motion for a downward departure pursuant to section 5K1.1. Anthony moved the district court…