United States v. E.F., 920 F.3d 682

E.F. pleaded guilty under a plea agreement in which the government agreed to recommend a sentence below the Guidelines and reserved discretion to move for departures under both USSG §5K1.1 and 18 U.S.C. §3553(e).
The district court reduced E.F.’s advisory Guidelines range substantially and ultimately imposed the statutory mandatory minimum sentence; the court indicated it would have preferred a lower sentence but the government refused to file a §3553(e) motion.
The government filed a §5K1.1 motion (Guidelines-based reduction) but declined to file a §3553(e) motion (statutory authority to go below the mandatory minimum), citing concerns about E.F.’s candor and ongoing criminal activity discovered during the investigation.
E.F. argued the government breached the plea agreement’s implied covenant of good faith by refusing the §3553(e) motion, sought good-faith review under United States v. Doe, and contended the sentence was substantively unreasonable.
The district court applied the three-step Doe framework, accepted the government’s plausible justification (concerns about ongoing criminal activity and lack of full candor), and found E.F. failed to rebut that justification; it declined to conduct a merits hearing.
The Tenth Circuit affirmed: Doe does not require good-faith review here, the government’s refusal was within its discretion, and E.F.’s appellate waiver was enforceable, so the appeal was dismissed/enforced against E.F.

Issue	E.F.'s Argument	Government's Argument	Held
Whether Doe permits good-faith review when gov't files §5K1.1 but refuses §3553(e)	Doe's good-faith review should apply whenever prosecutor refuses any substantial-assistance motion	Doe applies only when government files no substantial-assistance motion or defendant fails to rebut justification	Court assumed Doe applies but found E.F. failed to rebut gov't justification; no good-faith relief granted
Whether government breached plea agreement by refusing §3553(e)	Government breached implied covenant of good faith and fair dealing	Refusal was based on plausible prosecutorial discretion (lack of full candor/ongoing activity)	No breach: discretion properly exercised and justification plausible
Whether the government’s later proffered reasons are barred as judicial admissions	Government’s prior statements at sentencing constituted admissions preventing new justifications	Sentencing statements were not formal judicial admissions; later reasons permissible	Court allowed government’s post-Doe explanations; not bound by judicial-admission doctrine
Enforceability of E.F.’s appellate waiver	Waiver unenforceable because promise of substantial-assistance relief was illusory, producing miscarriage of justice	Waiver valid: knowingly voluntary and no miscarriage of justice because gov't filed §5K1.1 and sentence was within Guidelines	Waiver enforced; appeal barred and government’s motion granted

United States v. Doe, 865 F.3d 1295 (10th Cir. 2017) (establishes three-step good-faith review framework for prosecutor’s refusal to file substantial-assistance motion)
United States v. Rodriguez-Rivera, 518 F.3d 1208 (10th Cir. 2008) (plea-agreement breach review is de novo)
United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (standard for enforcing appellate waivers)
United States v. Lukse, 286 F.3d 906 (6th Cir. 2002) (discusses government obligation to file substantial-assistance motion where promise in plea is illusory)
Rita v. United States, 551 U.S. 338 (2007) (within-Guidelines sentences presumptively reasonable)