
USCA1 Opinion

	




          July 22, 1996         [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1130                              UNITED STATES OF AMERICA,                                      Appellee,                                          v.                                JUAN VELEZ-HERNANDEZ,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                    [Hon. Jos  Antonio Fust , U.S. District Judge]                                              ___________________                                                                                      ____________________                                        Before                               Torruella, Chief Judge,                                          ___________                            Coffin, Senior Circuit Judge,                                    ____________________                               and Cyr, Circuit Judge.                                        _____________                                                                                      ____________________             Francisco Serrano Walker on brief for appellant.              ________________________             Guillermo Gil, United States Attorney, Jos  A. Quiles-Espinosa,             _____________                          _______________________        Senior Litigation Counsel, and Juan A. Pedrosa, Assistant United                                       _______________        States Attorney, on brief for appellee.                                                                                      ____________________                                                                                      ____________________                    Per Curiam.  Defendant Juan Velez-Hernandez appeals the                    Per Curiam.                    __________          sentence  imposed  following his  guilty  plea  to one  count  of          conspiracy to possess with intent to distribute cocaine  under 21          U.S.C.    841(a)(1), 846.   Velez claims that the  district court          erroneously  ruled that the  government did  not breach  the plea          agreement  by  failing  to  recommend a  downward  departure  for          "substantial assistance."   See 18 U.S.C.    3553(e); U.S.S.G.                                         ___          5K1.1.  We affirm.                    Under his  plea agreement,  Velez promised  to continue          truthfully  to  disclose to  the government  accurate information          related  to  all   unlawful  activities  in  which   he  and  his          collaborators were  involved, and to  refrain from  "commit[ting]          any offense."   The government  in turn promised  to recommend  a          downward departure  for "substantial  assistance" pursuant to  18          U.S.C.   3553 and U.S.S.G.   5K1.1.                      Several months after entering  into the plea agreement,          Velez was arrested on a new charge, as a felon in possession of a          loaded  firearm,  see 18  U.S.C.    922(g)(1),  to which  he pled                            ___          guilty.   Thereafter, Velez  provided further information  to the          government about the earlier cocaine conspiracy, which he had not          disclosed  as required by the plea agreement.  At sentencing, the          government  declined  to  move  for  a  "substantial  assistance"          departure,   citing   Velez'   deliberate   withholding   of  the          information  relating  to  the  cocaine   conspiracy,  in  direct          violation of the  plea agreement.   The  district court  rejected          Velez'  claim  that he  had  forgotten  the omitted  information.                                          2          Additionally,   the   district  court   determined   that  Velez'          commission of a subsequent offense violated the plea agreement as          well.  Accordingly, the court ruled that the government had acted          in  good faith and that Velez' conduct relieved the government of          any obligation to recommend a   5K1.1 downward departure.                     We need not discuss the Velez challenge to the district          court's  ruling insofar as it depended on the failure to disclose          all information relating to his unlawful activities involving his          collaborators, since Velez' failure to refrain from "commit[ting]          any offense" inarguably constituted a material breach of the plea          agreement  sufficient  to  warrant  the  government's refusal  to          recommend a downward departure for substantial assistance.                Affirmed.               Affirmed.               _________                                          3
