
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2224                                    UNITED STATES,                                      Appellee,                                          v.                               JOSE R. GONZALEZ-NEGRON,                                Defendant, Appellant.                                 ____________________          No. 93-1201                                    UNITED STATES,                                 Plaintiff, Appellee,                                          v.                               JOSE R. GONZALEZ-NEGRON,                                Defendant, Appellant.                                     ____________                                     ERRATA SHEET               The  opinion of  this Court  issued on  August 23,  1993, is          amended as follows:               On cover sheet change the  word "Appeal" to Appeals.          August 23, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          No. 92-2224                                                UNITED STATES,                                      Appellee,                                          v.                               JOSE R. GONZALEZ-NEGRON,                                Defendant, Appellant.                                  __________________          No. 93-1201                                    UNITED STATES,                                 Plaintiff, Appellee,                                          v.                               JOSE R. GONZALEZ-NEGRON,                                Defendant, Appellant.                                 ___________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Hector M. Laffitte, U.S. District Judge]                                              ___________________                                 ___________________                                        Before                                Cyr, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Benicio Sanchez Rivera, Federal Public Defendant, and Miguel               ______________________                                ______          A.A. Nogueras-Castor, Assistant Federal Public Defender, on brief          ____________________          for appellant.               Charles  E. Fitzwilliam,  United  States  Attorney, Jose  A.               _______________________                             ________          Quiles-Espinosa,   Senior   Litigation   Counsel,   and   Ernesto          _______________                                           _______          Hernandez-Milan, Assistant United  States Attorney, on brief  for          _______________          appellee.                                  __________________                                  __________________                      Per  Curiam.  Defendant-appellant Jose R. Gonzalez-                      ___________            Negron seeks to have his sentence vacated and recalculated in            the  district  court  on  the  grounds  that  the  government            breached  its  plea   agreement  with  him.   In  particular,            defendant contends  the government promised to  file a  5K1.1            motion  for downward  departure, but  failed to  do so.   The            district  court  found  that  the  government  made  no  such            promise.   Appellant further  argues that the  district court            erred  in  concluding that  it had  no  authority to  grant a             5K1.1  departure  absent a  motion  by the  government.   We            affirm.                                            Background                                      __________                      Appellant pled  guilty to two counts  of a four-count          indictment  charging him  with stealing  and concealing  firearms          contained in packages intended to be conveyed or delivered by the          Postal Service and which he came  to possess as a Postal  Service          employee,  in  violation  of  18  U.S.C.       1709,  922(j)  and          924(a)(2).  In return  for appellant's guilty plea to  counts one          and two, the  government agreed  to request  dismissal of  counts          three and  four and, at the time of sentence, to inform the Court          of  "the extent and nature of defendant's cooperation."  The plea          agreement further provided as follows:                      6.   [Defendant  enters   the  agreement]                      without   .   .  .   promises   from  the                      [government] other  than those explicitly                      indicated in this document.                                         -3-                      7.  No  additional  promises,   terms  or                      conditions have been  entered into  other                      than   those  set  forth   in  this  plea                      agreement and none will be entered unless                      in writing and signed by all parties.                      The Pre-Sentence Report (PSR) set forth the following          facts.  On November  8, 1991, a registered parcel  containing two          revolvers was mailed from Birmingham, Alabama and an unregistered          parcel  containing two  pistols was  mailed from  Miami, Florida.          Both packages were  addressed to  a gun shop  in Bayamon,  Puerto          Rico.   The  packages were  stolen from  the Bayamon  branch Post          Office  on November 13, 1991.  One of appellant's co-workers told          postal inspectors that appellant was responsible for the thefts.                      A few  weeks after the  theft, appellant sold  one of          the pistols to a Puerto Rico Police Department undercover  agent.          Appellant sold the  other pistol to an acquaintance for  $700.  A          third firearm was discovered by appellant's father in appellant's          car.  In an  interview with a postal inspector,  appellant stated          that he had  received from his co-worker  a yellow slip of  paper          for retrieving  the  packages.   He  had given  the  slip to  his          neighbor,  a minor,  who subsequently  obtained the  packages and          delivered the firearms contained therein to appellant.                      The PSR  reiterated the terms of  the plea agreement,          including that "the government will . . . inform the court at the          time of  sentencing regarding the  extent and nature  of whatever          cooperation is provided by the defendant."  The probation officer          recommended a base offense level (BOL)  of 12, to be increased by                                        - 4 -                                          4          1 level because the offense involved more than two, but less than          five, firearms.  The PSR further recommended an upward adjustment          in the BOL of two levels  for appellant's role in the offense and          a  downward  adjustment  of  two  levels  for  his  acceptance of          responsibility.   Based upon the recommended  total offense level          of 13 and a criminal history category of I, the probation officer          arrived at a guideline imprisonment range of 12 to 18 months.                      In discussing factors  that may warrant a  departure,          the PSR advised as follows:                      A downward departure may be considered by                      the Court based  on the cooperation which                      the  defendant  has  afforded  government                      authorities.      According   to   Postal                      Inspector  J.R. Cottes,  as  a result  of                      information  provided  by the  defendant,                      accomplice  Jacques  Orsini-Martinez,   a                      minor,  was   arrested  and  successfully                      prosecuted by state authorities.          The  PSR also  noted that  appellant had  been arrested  by local          authorities and charged with unlawful sale and illegal possession          of  a firearm,  arising  out of  the  same facts  underlying  the          federal indictment.  Trial was at that time pending in the Puerto          Rico Superior Court.                      At  the sentencing  hearing on  October 7,  1992, the          court  began by  asking appellant  if he had  anything to  say in          mitigation  of  punishment.    Appellant  (through  his  counsel)          responded  by  stating  that  he   had  been  informed  that  the          government would  not move for  a downward departure  pursuant to          U.S.S.G.   5K1.1.    Appellant  objected  that  he  had  provided                                        - 5 -                                          5          substantial assistance to the government, resulting in successful          prosecution in the Puerto Rico courts of a minor who was involved          in  the  offense   with  him.    Appellant   contended  that  the          government's failure to make a  5K1.1 motion constituted a breach          of the plea agreement.                      The  court  asked  the   government  to  respond  and          specifically  asked,  pursuant  to  the  plea  agreement,  to  be          informed  about  the  defendant's  cooperation.   The  government          stated that at the time the plea agreement  was entered, the type          of cooperation expected from  appellant was the surrender  of the          two missing firearms or the identification of the persons to whom          they'd  been   delivered.  This  cooperation  was  not  received.          Appellant  neither  delivered  the  guns to  the  government  nor          identified the persons to whom he had delivered them.                      Appellant   then   argued   that  he   had   provided          cooperation in  locating the  missing weapons  by meeting with  a          special agent  of  the federal  Bureau  of Alcohol,  Tobacco  and          Firearms and telling  him to whom he had given  the firearms.  In          addition, he had met  with one of the  recipients of the  missing          firearms.  That person was murdered on the day after the meeting,          defeating appellant's  plans to retrieve the  firearm.  Appellant          attempted, also  unsuccessfully, to  locate the recipient  of the          other missing  weapon.   In view  of this  cooperation, appellant          argued  that  the  government's  refusal  to  move  for a   5K1.1          departure was arbitrary and capricious.                                        - 6 -                                          6                      The district court  ruled that  in the  absence of  a          motion  by the  government, and  without  any evidence  that "the          government is  lying or  is not  telling the  truth or  is hiding          evidence," it was without authority to depart from the guidelines          pursuant to  U.S.S.G.  5K1.1.   The court sentenced  appellant to          twelve  months'   imprisonment  on  each  count,   to  be  served          concurrently.    The  sentencing  judge  explained  that  he  was          imposing  a  sentence  at the  low  end  of  the guideline  range          "because  of  [appellant's]  youth  and  the  fact  that  he  has          cooperated  in a way,  not too much  but in a way  with the local          government, but it is not enough for a departure under Section 5K          of the guidelines."                      On  October 13,  1992,  appellant filed  a notice  of          appeal  (Appeal No. 92-2224).  The next day, appellant filed with          the  district  court  a  motion  to  correct  or reduce  sentence          pursuant  to Fed.  R.  Crim. P.  35(c).   Appellant  requested  a          hearing on the issue of the government's breach of its obligation          under  the plea agreement to  move for a  downward departure from          the guidelines pursuant to U.S.S.G.  5K1.1.   This court remanded          to the district court for a ruling on the Rule 35(c) motion.                      The district court held a hearing on appellant's Rule          35(c) motion on January 28, 1993.  The court ruled  that the plea          agreement  did not provide that  the government would  move for a          reduction pursuant to U.S.S.G.   5K1.1.  Appellant protested that          it  was his understanding when he entered the plea agreement that                                        - 7 -                                          7          "the Government would advise [the court] as to what he cooperated          . . . so that [the court] could make the downward departure under          5K."  The district court, citing  the "zipper clause" in the plea          agreement, providing  that no  additional promises would  be made          unless  in writing  and signed  by both  parties, ruled  that the          government was  only obliged to  advise the court  of appellant's          cooperation, but not  to move for a  5K1.1  reduction.  The court          found that the government had met its obligation:                      They  complied with  that  part of  their                      agreement,  and I remember  they told the                      court what has happened with the weapons.                      So  they  did  comply  by  informing  the                      court.          Therefore,  the district  court  denied  appellant's  Rule  35(c)          motion.  Appellant filed this appeal.                                      Discussion                                      __________                      Breach of Plea Agreement                      ________________________                      Regardless whether we apply a clearly erroneous or de          novo  standard of  review to  the district  court's determination          that the plea agreement  was not violated, compare United  States                                                     _______ ______________          v.  Tilley, 964  F.2d 66,  71 (1st  Cir. 1992)  (applying clearly              ______          erroneous  standard), with   Kingsley v. United  States, 968 F.2d                                ____   ________    ______________          109, 114 (1st Cir.  1992) (applying de novo standard),  we uphold          the  district court's finding of  no breach.   The district court          found that  the plea agreement  did not include a  promise by the          government to  move  for  a  reduction of  sentence  pursuant  to           5K1.1.  That  finding is fully  supported by the  record.    The                                        - 8 -                                          8          plea  agreement makes no mention  of  5K1.1.   Nor does appellant          contend that any other written or oral agreement was entered.                         Appellant merely  contends that he  inferred from the          government's promise to inform the court of his cooperation  that          it would also  move for a  5K1.1  departure.  The  plea agreement          specified,  however,  that  the   government  had  not  made  any          additional  promises and  that "none  will be  entered  unless in          writing and signed by  all parties."  At the guilty plea hearing,          appellant  specifically acknowledged  that  "everything that  was          promised [him] is  included, is inserted  in this document  which          means that anything else which  is not here does not exist  or is          not binding upon the government or upon [him]."                      Although appellant's reasonable understanding  of the          government's  obligations  under  the plea  agreement  should  be          enforced, in this case a promise to move for a departure under            5K1.1 could not  reasonably be implied from the plea agreement's          promise  to  inform  the  court  of  the  extent  of  appellant's          cooperation.   See, e.g., United  States v. Massey,  No. 92-3409,                         ___  ____  ______________    ______          1993  U.S. App. LEXIS 16409  (10th Cir. July  1, 1993) (rejecting          appellant's argument that plea agreement, providing only that the          government would  inform the court  of the extent  of defendant's          cooperation,  obligated  the  government  to move  for  a   5K1.1          departure).  As we said in United States v. Atwood, 963 F.2d 476,                                     _____________    ______          479 (1st  Cir. 1992), "[i]t  is nose-on-the-face  plain that  the                                        - 9 -                                          9          [plea  agreement] did not obligate  the government to  move for a          downward departure based on appellant's cooperation."                      Appellant  does  not   contend  that  the  government          refused to inform  the court of  the "extent and  nature" of  his          cooperation.     Rather,  appellant's   complaint  is  that   the          government  refused to file a   5K1.1 motion.   As the government          never  promised to make a   5K1.l motion, the  government did not          violate the  plea  agreement by  failing  to request  a  downward          departure.                      Section 5K1.1 Departure                      _______________________                      Appellant    argues    that   the    district   court          misinterpreted U.S.S.G  5K1.1 as requiring a government motion as          a  prerequisite to  a downward  departure based  upon appellant's          substantial assistance.    We disagree.   Section 5K1.1 provides,          in relevant part, as follows:                      Upon  motion  of  the government  stating                      that    the   defendant    has   provided                      substantial     assistance     in     the                      investigation  or prosecution  of another                      person who has  committed an offense, the                      court may depart from the guidelines.          U.S.S.G   5K1.1.  As this court has recently noted, "a government          motion  is  a sine  qua  non to  a  departure  for a  defendant's                        ____  ___  ___          substantial assistance, see Wade v. United States, __U.S. __, __,                                  ___ ____    _____________          112 S.  Ct. 1840, 1843, 118  L.Ed. 2d 525  (1992). . .  ." United                                                                     ______          States v. Mariano, 983 F.2d 1150, 1155 (1st Cir. 1993); see also,          ______    _______                                       ___ ____          United States v. Atwood, 963 F.2d at 479.  In   Wade  v.   United          _____________    ______                         ____       ______          States,  112 S.  Ct.  1840,  the  Supreme  Court  held  that  the          ______                                        - 10 -                                          10          government's  decision  not  to  move for  a  downward  departure          pursuant to  5K1.1 was subject to judicial review and reversal if          the refusal is found to be based upon an unconstitutional motive.          The Court held  that an  arbitrary refusal of  the government  to          file  a   5K1.1  motion,  in  that it  "was  not  related  to any          legitimate government  end," would  entitle appellant  to relief.          Id. at 1844.          __                      At his sentencing hearing, appellant  argued that the          government's failure to move for a  5K1.1 departure was arbitrary          and capricious.  As  in Wade,  however, appellant's  only support                                  ____          for his position  was the  extent of cooperation  provided.   The          Court in  Wade held that  "[t]his of course, was  not enough, for                    ____          although  a showing  of assistance is  a necessary  condition for          relief,  it is not  a sufficient one."   Id.   Similarly, in this                                                   __          case,   even    assuming   that   appellant's    assistance   was          "substantial,"  he is  not entitled  to relief.    The government          explained  at the sentencing hearing  that the reason  it did not          move  for  a  downward  departure  was  that  appellant  had  not          fulfilled  his promise to deliver the missing guns or provide the          names  of the persons  to whom  he sold  them.   The government's          failure  to move for a departure for this reason is not arbitrary          or capricious.   The district  court did not  err in  determining          that it had no  authority to grant a downward  departure pursuant          to U.S.S.G.  5K1.1 absent a motion from the government.                      Appellant's conviction and sentence are affirmed.                                                              ________                                        - 11 -                                          11
