                  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                      [NOT FOR PUBLICATION]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

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                                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

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                                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

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                                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

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                                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.
                                                            

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