               IN THE UNITED STATES COURT OF APPEALS

                         FOR THE FIFTH CIRCUIT

                   _____________________________

                            No. 92-7485
                   _____________________________

                UNITED STATES OF AMERICA,

                                       Plaintiff-Appellee,

                                 versus

                JOE HERNANDEZ,

                                   Defendant-Appellant.
        _________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
        _________________________________________________

                            ( July 7, 1993)

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

     Pursuant to a plea agreement which provided, inter alia, that

the government "may" make a motion for a downward departure if the

defendant renders substantial assistance, Joe Hernandez pleaded

guilty to, and was convicted on, one count of violating 18 U.S.C.

§ 922(g)(1) (felon in possession of a firearm).            As he had been

convicted of three prior felonies, Hernandez received a mandatory

minimum sentence of fifteen years under 18 U.S.C. § 924(e).             On

appeal, Hernandez asserts that the government breached the plea

agreement by failing to make a motion for downward departure, and

that the district court erred in finding that Hernandez had not

provided   substantial   assistance.      Finding   that    in   the   plea
agreement    there      were    significant       ambiguities     which    were   not

resolved by the district court, we vacate the sentence imposed and

remand this case for resentencing.

                                           I

                                         FACTS

      Hernandez was arrested in in Corpus Christi, Texas, for public

intoxication.      During a search of Hernandez's person conducted

incident to the arrest, a .25 caliber pistol was found by the local

police.   When they learned that Hernandez had several prior felony

convictions, his case was transferred to the Bureau of Alcohol,

Tobacco, and Firearms (ATF), which initiated a federal prosecution

under 18 U.S.C. § 922(g)(1).             As a result of his three prior felony

convictions, Hernandez was subject to a statutory minimum sentence

under § 924(e) of fifteen years (180 months).

      Hernandez entered a plea of guilty to the firearms charge,

after he and the government entered into a written plea agreement.

It   provided    that    in     return    for    Hernandez's      guilty   plea   the

government would recommend credit for acceptance of responsibility

and a sentence at the low end of the guideline range.                             The

government      concedes       that    "[a]t     rearraignment,     the    [written]

agreement was effectively amended by the Assistant United States

Attorney [AUSA]      who,      after     listing    the   terms    of   the   written

agreement," stated:

      THE COURT:        Is there a plea agreement?

      MR. CUSICK:    Yes, your honor.    It's changed through Mr.
      Hernandez's plea of guilty to a single-count indictment. The
      Government has agreed pursuant to Rule 11(E)(1)(b) to
      recommend that he be given credit for acceptance of

                                           2
     responsibility and that he be sentenced at the bottom of any
     applicable sentencing guidelines. Although this agreement has
     been reduced to writing and signed by the parties and is
     tendered to the Court for filing, I would point out that it is
     implicit although not spelled out in the agreement that if Mr.
     Hernandez should provide substantial assistance to the
     Government, either I guess through truthful information and
     testimony if necessary, that the Government may make a motion
     for downward departure at sentencing, and the extent of any
     downward departure would be in the sole discretion of the
     Court to make.1

The government acknowledges that the agreement which it made with

Hernandez    expressly    provided   that   "[i]f   [Hernandez]   provides

assistance, the government may make a motion for downward departure

at the time of sentencing."

     After the court accepted the guilty plea, but before the

sentencing hearing, Hernandez provided "assistance" in two ways.

First, he gave the government a hand-drawn map that ostensibly

showed where a stash of cocaine could be found.        The map was passed

among several agents, but was never fully investigated (i.e., none

of the agents used it to look for the stash of cocaine).          Second,

Hernandez provided the government with information (which the

government    insists    was   "stale")   concerning   drug   dealing   and

illegally possessed guns in the Corpus Christi area.

     Hernandez asserts that he provided the government with all of

the information that it requested, but that the government simply

failed to follow up on the information that he provided.          In other

words, Hernandez claims to have been ready and willing to provide

any and all assistance that he was able to furnish, but the

government failed to give him the requisite opportunity.

     1
         (Emphasis added).

                                     3
      At   the   sentencing    hearing,   Hernandez   proffered   evidence

concerning the amount of assistance that he had rendered. The Pre-

Sentence Report (PSR) recommended a sentencing guideline range of

188-235 months and noted the 180 month (15 years) mandatory minimum

sentence under § 924(e).       Taking the position that any assistance

Hernandez had provided was insubstantial, the government refused to

make a motion for downward departure under either U.S.S.G. § 5K1.1

or 18 U.S.C. § 3553(e).       After giving Hernandez the opportunity to

withdraw his plea when the government refused to make a motion for

downward departure))an opportunity that was refused))the court

sentenced him to 180 months, which was eight months less than the

lowest end of the applicable guidelines range and precisely the

mandatory minimum of fifteen years.          Hernandez timely appealed.

                                     II

                                  ANALYSIS

A.   Standard of Review

      We have recently stated that "[w]hether the government's

conduct violated the terms of a plea agreement is a question of

law."2     The defendant has the burden of proving the underlying

facts that establish a breach by a preponderance of the evidence.3

"'In determining whether the terms of a plea agreement have been


      2
       United States v. Watson, 988 F.2d 544, 548 (5th Cir. 1993)
(citing United States v. Valencia, 985 F.2d 758, 760 (5th Cir.
1993)).
      3
       Id. (citing United States v. Conner, 930 F.2d 1973, 1076
(4th Cir.), cert. denied, 112 S.Ct. 420 (1991), and United States
v. Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied, 488 U.S.
863 (1988)).

                                     4
violated, the court must determine whether the government's conduct

is consistent with the parties' reasonable understanding of the

agreement.'"4

B.   Hernandez's Claims of Error

      1.    What Constitutes "Substantial Cooperation"?

      The thrust of Hernandez's claim is that, after he provided

every bit of assistance within his power, the government breached

the plea agreement by refusing to make a motion for downward

departure.     His claim, however, runs headlong into the district

court's explicit finding that he did not provide "substantial"

assistance to the government.             As noted above, in a sentencing

proceeding such as the one involved in the instant case, the

district court must determine whether the government's conduct is

consistent with the parties' reasonable interpretations of the plea

agreement))here,         the   parties'       interpretation   of   what   might

constitute substantial assistance. No such finding was made by the

district court; it merely concluded))without making any discrete

factual determinations as to the reasonable expectations of either

Hernandez     or   the    government))that       the   assistance   provided   by

Hernandez was not "substantial."

      As noted, Hernandez provided the government with a map,

purporting to show the location of a stash of cocaine, as well as

information about drugs and guns in Corpus Christi.                    At least

implicitly, neither the government nor the district court deemed

this information to be "substantial."                  The record, however, is

      4
          Id. (quoting Valencia, 985 U.S. at 761).

                                          5
silent as to just what the parties did believe, at the time the

plea agreement was entered into, would constitute substantial

assistance.

     When he explained the amended plea agreement to the sentencing

court, the AUSA described the assistance that the government

thought Hernandez might provide as "either I guess . . . truthful

information and testimony if necessary."           The government never

requested that Hernandez testify in proceedings against other

defendants    in   accordance   with    the   agreement,   and   it   never

determined whether the information he provided (principally the

map) was truthful.    Nothing in the record indicates that, when the

agreement was made, the government was only prepared to make a

motion for downward departure if Hernandez provided information

that actually helped bring about other prosecutions. The record is

simply devoid of information concerning what quantity or quality of

information and cooperation the parties contemplated that Hernandez

would (but did not) provide in this case.

     Moreover, as was frankly conceded by the government to this

court at oral argument, the agreement was made when Hernandez had

been incarcerated for over six months.         Surely, when the bargain

was made the government could have hoped for little more than that

which   Hernandez    eventually   provided))"jailhouse      scuttlebutt."

Again, it is unclear from the record what more Hernandez could have

provided))or, more to the point, what more the government could

possibly have contemplated that he would provide))in order to earn

a motion for downward departure.


                                    6
      On    remand,     the    district           court     must     also     consider     the

likelihood (or fact) that the assistance Hernandez could and did

provide failed to increase in value (actually had no chance to

become what the government might consider "substantial") due to the

inaction of the investigators vis-à-vis the information.                             We have

stated that     when     a    defendant,          "in     reliance    on     [a    government

representation], accepted the government's plea offer and did his

part, or stood ready to perform but was unable to do so because the

government had no further need or opted not to use him, the

government is obliged to move for a downward departure."5                             In the

instant case, Hernandez provided the government with different

types of information, and the government failed to follow up on any

of it.      Considering the type of information that the government

should have expected from a defendant like Hernandez, who had been

incarcerated for over six months, we find it difficult to conceive

of   what    more     Hernandez       could        have     provided        that   would    be

substantial      without        any     subsequent            verification           by    the

investigators))verification that was clearly necessary but was

never performed.

      2.    The Use of "May" in the Plea Agreement

      The government's oral explanation of the plea agreement was to

the effect that if Hernandez provides substantial assistance, "the


      5
       United States v. Melton, 930 F.2d 1096, 1098-99 (5th Cir.
1991); see Watson, 988 F.2d at 552-53 (discussing Melton's
continued vitality after the Supreme Court's decision in Wade v.
United States, ___ U.S. ___, 112 S. Ct. 1840 (1992), when the
government's discretion to make a § 5K1.1 motion is limited by a
plea agreement).

                                              7
government     may       make    a    motion       for       downward    departure     at

sentencing."6        The    record     sheds       no    light     on   the   degree   of

discretion, if any, the parties intended for the government to

retain by the use of the permissive word "may" (as opposed to the

mandatory word "shall").             We have observed that plea agreements

like the one involved here usually contain "shall."

     In Wade v. United States,7 the Supreme Court held that a trial

court could not depart downwardly under § 5K1.1 in the absence of

a government motion to that effect.                      The Court also held that

§ 5K1.1 and its statutory counterpart, 18 U.S.C. § 3553(e), gives

the government "a power, not a duty" to file such a motion.8                            We

have held, however, that the discretion to make a § 5K1.1 motion,

which    was   discussed        in   Wade,       can    be   bargained    away   by    the

government     in    a   plea    agreement.9            In   the   instant    case,    the

government's confection of the agreement could be viewed cynically

as an attempt to make to the defendant believe that the government

had bargained away its discretion to make or not make a motion when

it entered the plea agreement, while subtly but intentionally

retaining its discretion through the use of the non-mandatory

"may."

     We find it difficult if not impossible to believe that any

defendant who hopes to receive a motion for a downward departure

     6
         (Emphasis added).
     7
         112 S. Ct. 1840 (1992).
     8
         Id. at 1843.
     9
         See Watson, 988 F.2d at 552-53.

                                             8
would knowingly enter into a plea agreement in which the government

retains unfettered discretion to make or not to make that motion,

even if the defendant should indisputably provide substantial

assistance.         On remand of this case, the government should not be

heard to make the legalistic argument that merely by using the word

"may"    the    government      is   free      to     exercise   the   prosecutor's

discretion whether to make the motion for downward departure.

Given the admirably candid concessions it made to this court in

oral    argument,       the   government       cannot     hereafter    insist    that

Hernandez knowingly and intentionally walked into such an illusory

"bargain."      Frankly, we are incredulous that any defendant would

consciously make such an obviously bad deal absent some extremely

compelling need to plea rather than stand trial.

       3.   Departures Below the Mandatory Minimum

       At oral argument, the parties discussed the general question,

does the district court's authority to depart below a mandatory

minimum depend upon whether the government's downward departure

motion is made under § 5K1.1 or under 18 U.S.C. § 3553(e)?                        The

agreement      in    the   instant   case      does    not   specify   under    which

provision the motion might be made in the event that Hernandez

should provide substantial assistance.                 As the agreement was thus

silent on this issue, the government's potential obligation to move

for a downward departure is even more questionable.

       After reviewing the supplemental briefs submitted to us, and

conducting independent research on the matter, we join the majority

of circuits which hold that the district court may depart below a


                                           9
mandatory minimum irrespective of whether the departure motion is

made under either § 5K1.1 or § 3553(e).10       As our colleagues on the

Fourth Circuit have stated:        "Section 5K1.1 governs all departures

from guideline sentencing for substantial assistance, and its scope

includes departures from mandatory minimum sentences permitted by
                         11
18 U.S.C. § 3553(e)."

                                     III

                               CONCLUSION

     A    substantial   question    remains   unanswered   concerning   the

intentions of the parties as to the nature, quality, and quantity

     10
       See United States v. Cheng Ah-Kai, 951 F.2d 490, 492-93
(2d Cir. 1991); United States v. Wade, 936 F.2d 169, 171 (4th
Cir. 1991); United States v. Keene, 933 F.2d 711, 714 (9th Cir.
1991); see also U.S.S.G. § 5K1.1 application note 1 ("Under
circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. §
994(n), as amended, substantial assistance in the investigation
or prosecution of another person who has committed an offense may
justify a sentence below a statutorily required minimum
sentence."(emphasis added)). But see United States v. Hawley,
984 F.2d 252, 253-54 (8th Cir. 1993)(holding that a "sentencing
court can depart below the statutory mandatory minimum sentence
only if the government files a motion for such a departure
pursuant to 18 U.S.C. § 3553(e)" and not merely U.S.S.G. §
5K1.1); United States v. Rodriguez-Morales, 958 F.2d 1441, 1444-
45 (8th Cir.), cert. denied, __ U.S. __, 113 S.Ct. 375 (1992).
     11
       Wade, 936 F.2d at 171.
     In its initial brief to this court, the government also
argued that Hernandez had waived any error by declining the
district court's offer to withdraw his guilty plea. We recognize
that when the court made the offer to Hernandez, it was giving
him little more than a Hobson's choice))if he withdrew his plea
at that point, he would realize no benefit as the government had
already received all the benefit from his waiver of rights, i.e.,
he had given substantial prejudicial evidence that could be used
against him. In asserting during oral argument and in subsequent
briefing to this court that this case should be remanded for
additional factfinding and resentencing, however, we understand
the government to have abandoned its claim that Hernandez waived
any potential error by refusing the court's offer to withdraw his
plea.

                                      10
of the information Hernandez was expected to provide in order to

constitute   "substantial   assistance"   under   the   subject   plea

agreement.   Only after it first determines what the parties meant

by using that term can the district court properly decide whether

the government breached the plea agreement by refusing to move for

a downward departure. The court must also determine the intentions

of the parties concerning the use of the word "may" in the

agreement))even though we have serious doubts that either party

meant for the government to retain unbridled discretion merely by

using that word.    Finally, we note that if the district court

should be inclined to depart below the mandatory minimum sentence

following a motion by the government to depart downward under

either U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e), the court is not

prohibited from so doing.

     For the the foregoing reasons, we VACATE Hernandez's sentence

and REMAND this case for additional determinations))and eventual

resentencing))consistent with this opinion.




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