                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-28-2004

USA v. Fuentes
Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3215




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"USA v. Fuentes" (2004). 2004 Decisions. Paper 672.
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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 03-3215
                                    ____________

                          UNITED STATES OF AMERICA

                                          v.

                                 CESAR FUENTES,

                                         Appellant
                                    ____________

                   On Appeal from the United States District Court
                              for the District of New Jersey
                                 (D.C. No. 02-cr-00806)
                  District Judge: The Honorable Garrett E. Brown, Jr.
                                      ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 27, 2004

       Before: SCIRICA, Chief Judge, FISHER and ALARCÓN,* Circuit Judges.

                                (Filed: May 28, 2004)
                                    ____________

                             OPINION OF THE COURT
                                  ____________




      *
        The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
FISHER, Circuit Judge.

       Cesar Fuentes appeals from the district court’s refusal to compel the government to

execute its contractual agreement to move for a downward departure. The government

refused to move for a downward departure following its determination that Fuentes

committed crimes in breach of cooperation agreements he had entered into with the

government. We conclude that the government’s determination that Fuentes committed

crimes in breach of the agreements was made in good faith, and we therefore affirm the

judgment of the district court.

                                            I.

       On October 29, 2002, Fuentes pled guilty to charges of conspiring to commit mail

fraud. In connection with his guilty plea, Fuentes entered into two cooperation

agreements, one with the United States Attorney’s Office for the District of New Jersey

(the New Jersey Agreement) and one with the United States Attorney’s Office for the

Eastern District of New York (the New York Agreement) (the Agreements). The

Agreements both required the government to move for a downward departure in the event

Fuentes fully complied with his obligations, including the obligation not to commit or

attempt to commit any further crimes. The Agreements expressly provided that were

Fuentes to commit any crimes, the government would be released from its contractual

obligation to move for a downward departure. The New Jersey Agreement conferred

“sole discretion” to the government in determining whether Fuentes complied with the



                                            2
Agreement; the New York Agreement required only that the government’s determination

as to Fuentes’s compliance be undertaken in “good faith.”

       On March 8, 2003, prior to Fuentes’s sentencing hearing, New Jersey law

enforcement authorities arrested and charged Fuentes with kidnapping, robbery and

assault. On M ay 1, 2003, after informing Fuentes’s counsel that the government would

not move for a downward departure because Fuentes had breached the Agreements by

committing other crimes, a government attorney met with Fuentes to hear his version of

events. Finding Fuentes’s version lacking in credibility and inconsistent with the

evidence obtained by state investigators, the government reaffirmed its position that

Fuentes had breached the Agreements and that it consequently would not move for a

downward departure. Fuentes moved to compel the government to file a downward

departure motion. The district court considered the motion at Fuentes’s sentencing

hearing on July 7, 2003, and denied it.

                                            II.

       We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). Fuentes

asserts that the government’s refusal to move for a downward departure constituted a

breach of the Agreements entitling him to relief. The government counters that it only

decided not to move for a downward departure once it determined that Fuentes had

breached the Agreements by committing crimes, a breach that, under the plain terms of

the Agreements, released the government from its obligation to so move. Fuentes



                                             3
contests the government’s view that he breached the Agreements by committing a crime,

arguing that the government’s determination was “unilateral[ ] and premature” and could

not support a conclusion that Fuentes breached the Agreements unless and until he has a

“meaningful opportunity” to defend himself against the charges. Indeed, Fuentes goes

further, arguing that the government cannot determine that he has committed a crime in

violation of the Agreements until a jury decides beyond a reasonable doubt that he has.

       Fuentes’s contentions are meritless. We have made plain that “[w]hen there is an

agreement, the district court may interpret the agreement according to contract principles

and consider whether the government has acted in good faith in choosing not to move for

the downward departure.” United States v. Swint, 223 F.3d 249, 253 n. 5 (3d Cir. 2000)

(citation omitted). “Presumably, a district court may also determine whether the

government has acted with an unconstitutional motive in this circumstance.” Swint, 223

F.3d at 253 n. 5. Thus, the government need not prove a defendant’s breach of a plea

agreement by any measure of evidence, but must only act without unconstitutional motive

and in good faith.

       Fuentes nowhere argues that the government acted with unconstitutional motive.

Thus, we examine the record only for evidence that the government acted in bad faith.1


       1
        We note that Fuentes did not expressly argue that the government acted in bad
faith before the district court, nor has he done so to this Court. Nonetheless, we will
consider his argument concerning weaknesses in the evidence supporting the charges
against him as one challenging the good faith of the government’s determination that he
committed the crimes with which he has been charged.

                                             4
We have not often analyzed “good faith” in the plea agreement context. In United States

v. Isaac, 141 F.3d 477 (3d Cir. 1998), reviewing the government’s determination that the

defendant had breached a cooperation agreement by failing to provide substantial

assistance, we said that “good faith” required only “that the government’s position be

based on an honest evaluation of the assistance provided and not on considerations

extraneous to that assistance.” Isaac, 141 F.3d at 484.

       The government contends that it acted in good faith in reaching its conclusion that

defendant committed crimes because it (1) discussed the offenses with the county

prosecutor’s office; (2) gave Fuentes two opportunities to present his version of events;

and (3) evaluated Fuentes’s story against the evidence presented by the state prosecutor.

The government also argues that its determination is supported by the Operations Report

from the Lawrence Township Police Department, as well as the statements of the alleged

kidnapping victim (Jose Morales), who identified one of the perpetrators as “Cesar” and

provided a photo identification of Fuentes as one of his assailants.

       This is sufficient to establish “good faith.” Indeed, at least one of our sister

circuits has held that the mere existence of criminal charges is sufficient to support a good

faith determination that a defendant has committed crimes for purposes of a cooperation

agreement. See United States v. Gregory, 245 F.3d 160, 164 (2d Cir. 2001) (holding that

“charges filed against Gregory provided a good faith basis for the Government to

determine that he had breached his obligation not to commit any further crimes.”)



                                              5
(citation omitted). Fuentes’s contentions about the evidence supporting the charges

against him, even if valid, do not establish that the government acted in bad faith in

finding that he committed the crimes for purposes of the Agreements.

       Accordingly, we will affirm the judgment of the district court.

________________________




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