
USCA1 Opinion

	




                           UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                ____________________       No. 96-1857                              UNITED STATES OF AMERICA,                                Plaintiff, Appellee,                                         v.                               AWILDA GARCIA-VELILLA,                                Defendant, Appellant.                                ____________________                    APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                  [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                ____________________                                       Before                                Boudin, Circuit Judge,                       John R. Gibson,* Senior Circuit Judge,                        and Pollak,** Senior District Judge.                                ____________________            Evelyn Quinones Carrasquillo for appellant.            Jose                   A.                       Quiles-Espinosa, Senior Litigation Counsel, with whom       Guillermo                  Gil,  United                               States                                       Attorney, Nelson                                                          Perez-Sosa, Assistant       United States Attorney, and   Warren                                             Vazquez, Assistant United States       Attorney, were on brief for the appellee.                                ____________________                                   August 5, 1997                                ____________________       _________________________       *Of the Eighth Circuit, sitting by designation.       **Of the Eastern District of Pennsylvania, sitting by designation.                 Per                       Curiam. The defendant-appellant, Awilda Garcia-            Velilla, pled guilty to one count of conspiracy to possess and            distribute cocaine in violation of 21 U.S.C. SS 841(a)(1), 846.            In the plea agreement, the government agreed to dismiss 12            other counts and to recommend a downward departure "if the            [defendant's] cooperation is deemed substantial." 18 U.S.C. S            3553(e); U.S.S.G. S 5K1.1. The agreement purported to reserve            to the prosecutor the exclusive right to decide whether            substantial assistance had been provided.                 Garcia-Velilla in turn agreed "to provide all information            known to the defendant regarding any criminal activity            including but not limited to the offenses described in the            pending indictment." The plea agreement further warned that if            the defendant failed in any way to fulfill completely her            obligations under the agreement, the government would be freed            from all obligations under the agreement. As an example of a            breach, the agreement referred to a defendant who "knowingly            withholds evidence, or otherwise is not completely truthful            with the United States . . . ."                 Garcia-Velilla did provide considerable information to the            government but also, during her release on bail, twice tested            positive for continued use of cocaine. The government took the            position that this impaired her usefulness as a witness and            said that it would not move for a downward departure. In            addition, Garcia-Velilla declined to tell the government who                                         -2-                                         -2-            had supplied her with cocaine. The government asserted that            this was a further reason for its refusal to make a downward            departure motion.                 In connection with sentencing, the government persisted in            its refusal and, despite a request by Garcia-Velilla, the            district court declined to compel the government to make such            a motion. It sentenced Garcia-Velilla to 70 months'            imprisonment, a sentence determined without the benefit of a            downward departure for substantial assistance. The 70-month            sentence was itself below the statutory minimum because Garcia-            Velilla satisfied the requirements of 18 U.S.C. S 3553(f); but            a downward departure for substantial assistance would have            permitted a sentence below the guideline range as well.            U.S.S.G. S 5K1.1. Garcia Velilla now appeals claiming that the            government breached its plea agreement by failing to move for            the latter departure. We affirm.                 The government is obliged to respect the terms of the plea            agreement, United States v. Tilley, 964 F.2d 66, 70 (1st Cir.            1992), including a conditional promise to recommend a downward            departure. Whether this agreement could be regarded as            establishing such a promise is open to dispute since (as noted)            the agreement also purported to reserve this decision            exclusively to the prosecutor. Also open to dispute is the            standard that would apply if the court did assess the                                         -3-                                         -3-            government's refusal.  See generally United States v. Rexach,            896 F.2d 710 (2d Cir.), cert. denied, 498 U.S. 969 (1990).                 We need not definitively resolve these questions, because            Garcia-Velilla admits that she refused to provide the names of            those who supplied her with cocaine while she was on bail.            This is a self-evident violation of an explicit requirement of            the plea agreement that she "provide all information known to            [her] regarding any criminal activity." The government in turn            was released from its obligations under the plea agreement,            including any obligation to consider a downward departure            motion.                 Garcia-Velilla says that the government got the benefit of            considerable cooperation and has given nothing in return; and            she argues that her refusal to supply names of the persons who            supplied the cocaine should not be regarded as a sufficiently            important breach to excuse compliance by the government. To            the first point the answer is that Garcia-Velilla knew from the            agreement that she had to provide     all information about            criminal activity in order to receive    any benefit of the            agreement. As to the claim that her breach was too minor to            count, the identity of suppliers of cocaine can hardly be            regarded as trivial or unimportant, especially where the plea            agreement itself made clear that all information had to be            supplied.                                         -4-                                         -4-                 It thus becomes unnecessary to consider whether the            government could have declined to file a section 5K1.1 motion            for the limited reason that the defendant had, while on release            on bail, tested positively for cocaine and therefore apparently            had been in unlawful possession of that substance. Apparently            the plea agreement did not explicitly warn Garcia-Velilla that            she was obliged to refrain from any further criminal activity,            nor did it say that further criminal activity would be regarded            as failure to provide substantial assistance. Since this is a            recurring problem, it is unclear why the government fails to            provide such a warning, which would serve the interests of both            the defendant and the government.                 In all events, the various questions posed by the lack of            warning need not be resolved in this case. Here, the defendant            did breach the plea agreement by refusing to provide            information plainly required by the agreement. That is basis            enough to affirm the district court. Solely because it may be            useful to alert prosecutors and defense counsel to the lack of            warning issue, this opinion will be published.                 Affirmed.                                         -5-                                         -5-
