United States v. Michael Edward Dickey , 192 F. App'x 902 ( 2006 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
August 11, 2006
No. 05-13593 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 96-00078-CR-3-RV
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL EDWARD DICKEY,
a.k.a. Michael Eugene Jackson,
a.k.a. Dickey Doo,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 11, 2006)
Before TJOFLAT, BARKETT and PRYOR, Circuit Judges.
PER CURIAM:
Michael Edward Dickey, a federal prisoner proceeding pro se, appeals the
district court’s denial of his motion to compel the government to file a
Fed.R.Crim.P. 35(b) substantial assistance motion. Dickey argues that, after a first
Rule 35(b) motion was made and granted, he entered into a new, oral agreement
with the government under which the government would file another 35(b) motion
if Dickey provided additional substantial assistance. He asserts that he has
provided such assistance, and that the government now must file another motion to
reduce his sentence.
Although we review de novo the question of whether the government can be
compelled to file a substantial assistance motion, see United States v. Forney, 9
F.3d 1492, 1498 (11th Cir. 1993), a district court’s factual credibility
determinations warrant deference. United States. v. Ramirez-Chilel, 289 F.3d 744,
749 (11th Cir.2002). Like “all facts,” credibility determinations “are construed in
the light most favorable to the prevailing party below.” United States v. Bervaldi,
226 F.3d 1256, 1262 (11th Cir.2000).
Dickey does not claim that the prosecution breached the written plea
agreement under which the government first submitted a successful substantial
assistance motion. By that agreement’s own terms, the government was free to
determine, absent unconstitutional motives, whether Dickey’s assistance was
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substantial and, on that basis, to decide whether to file a 35(b) motion. Rather,
Dickey claims that the government beached a subsequent, oral agreement. The
government disagrees. In addition to its specific and explicit counter-assertions on
appeal, the government implicitly denied that an oral agreement ever existed when
it certified to the district court the question of Dickey’s substantial performance.
The district court was entitled to disbelieve Dickey’s claim that the
government promised him another 35(b) motion. Certainly this “understanding of
the facts” would not be “unbelievable.” See Ramirez-Chilel, 289 F.3d at 749. On
the contrary, the existence of a superceding oral agreement is dubious in light of
the terms of the written plea agreement, the government’s successful and good
faith performance of that agreement, and the subsequent lengths to which the
government went in the defendants’ relatively unproductive efforts to provide
substantial assistance. Accordingly, the judgment of the district court is
AFFIRMED.
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