                                                                               F I L E D
                                                                        United States Court of Appeals
                                                                                Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                APR 3 2001
                                    TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                       Clerk


 UNITED STATES OF AMERICA,

           Plaintiff-Appellee,
 v.                                                          No. 99-4242
                                                         (D.C. No. 99-CR-259)
 DINO RAY LUCERO,                                          (District of Utah)

           Defendant-Appellant.




                                 ORDER AND JUDGMENT*


Before BRISCOE, PORFILIO, and LUCERO, Circuit Judges.




       Dino Ray Lucero challenges his sentence for felon in possession of a firearm in

violation of 18 U.S.C. § 922 (g)(1) following his guilty plea. Mr. Lucero asserts the

government violated his plea agreement when its motion for a downward departure

included a statement his testimony in another case was “merely corroborative,” when

another United States Attorney had stated, “I don’t believe that we could glean that



       *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
information from any other witness.” Because the government agreed to make the motion

as part of his plea agreement, Mr. Lucero argues the dismissive statement is a breach of

the government’s duty of good faith and his plea should be set aside. We disagree and

affirm the sentence.

       Mr. Lucero was arrested after he agreed to sell several firearms to an undercover

agent of the FBI. He was indicted and agreed to plead guilty. In his plea agreement, Mr.

Lucero consented to aid the government in another case about a bank robbery allegedly

committed by Gilbert Fontanez, a former cellmate of Mr. Lucero’s. In exchange for this

aid, the government agreed to recommend Mr. Lucero receive full credit for acceptance

of responsibility for his crime and to further recommend Mr. Lucero be sentenced at the

bottom of the applicable sentencing guideline range. The agreement further stated if in

the sole discretion of the government Mr. Lucero’s aid was judged to be substantial the

government would file a motion on Mr. Lucero’s behalf for downward departure of up to

four sentencing guideline levels. The agreement also informed Mr. Lucero the district

court was not bound to follow any of the government’s sentencing recommendations, and

if it declined to do so, he would not be allowed to change his plea.

       Mr. Lucero’s agreement with the government came just prior to Mr. Fontanez’s

trial date. Because of potential conflicts between Mr. Lucero, Mr. Fontanez, and Mr.

Fontanez’s counsel, the government requested a continuance in Mr. Fontanez’s case. At a

status conference to discuss the continuance (attended by counsel for Mr. Lucero), the


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district court questioned the government about the importance of Mr. Lucero’s testimony

and thus the need for the continuance. The following exchange occurred:

       COURT: In your professional judgment that evidence would be critical if
       the case against Mr. Fontanez went to trial; is that right?

       COUNSEL FOR THE U.S.: That is correct, Your Honor. I don’t believe
       we could glean that information from any other witness that we could have
       called.

Ultimately, Mr. Fontanez was sentenced without trial, following a plea agreement.

       At his sentencing hearing, Mr. Lucero objected to the government’s failure to file

a motion for downward departure, as it had promised in his plea agreement. Counsel for

the government replied the prosecutor in Mr. Fontanez’s case indicated Mr. Lucero’s

assistance had not met the threshold of substantial assistance justifying that relief. Mr.

Lucero’s counsel explained the importance of Mr. Lucero’s testimony, relating the

exchange between the court and the prosecutor in the Fontanez case. He further

requested time to subpoena the participants, and an evidentiary hearing. The sentencing

hearing was then postponed to allow the government to further investigate the propriety

of a motion for downward departure.

       After investigation, the United States filed a motion for downward departure,

requesting a one-level reduction based on Mr. Lucero’s assistance. The motion

characterized Mr. Lucero’s testimony as “fairly accurate with the evidence and merely

corroborative of numerous other previously identified witnesses.”



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       At a second sentencing hearing, Mr. Lucero’s counsel again requested an

evidentiary hearing on the sentencing motion. The district court declined to investigate

the matter further and proceeded with sentencing. The court granted the one-level

departure requested by the government, noting at the time that it was free to depart

downward further if it felt so inclined because the government’s motion for downward

departure once made could not be limited to a single level. The resulting sentencing

range was 37 to 46 months, from which the court chose a sentence of 42 months. Mr.

Lucero protested this sentence was at the upper end of the range, however, the court

made clear it was aware of the plea agreement but chose a sentence it thought appropriate

for Mr. Lucero’s offense. This appeal followed.

       Mr. Lucero’s argument is a succinct one. He contends the government’s

statement in the motion for downward departure is a material breach of the duty of good

faith because plea agreements are generally subject to a contract analysis. United States

v. Peterson, 225 F.3d 1167, 1170 (10th Cir. 2000).

       The issue of whether the government has violated a plea agreement is a question

of law reviewed de novo. Id. We utilize a two-step analysis to determine whether the

United States violated a plea agreement: 1) examine the nature of the promise; and 2)

evaluate the promise in light of the defendant’s reasonable understanding at the time of

the guilty plea. United States v. Brye, 146 F.3d 1207, 1210 (10th Cir. 1998). The Court

applies general principles of contract law to define the government’s obligations under


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the agreement looking to the express language and construing any ambiguities against

the government as the drafter of the agreement. Id.

       Mr. Lucero admits no case directly addresses the government’s obligation when it

files a motion for downward departure that satisfies a plea agreement, as this one clearly

does. Nevertheless, he argues, general principles of contract law apply, and thus each

party has a duty of good faith and fair dealing. Restatement (Second) of Contracts § 205

(1979). He asserts the government’s evaluation of his testimony in the motion for

downward departure as “merely corroborative of numerous other previously identified

witnesses” was deliberately misleading and thus a breach of good faith. He states prior

to his testimony the government had no reliable witness to connect Mr. Fontanez to the

bank robbery, and his testimony was accurately described by the prosecutor in that case

as “critical” and unable to be obtained from other sources. Mr. Lucero’s arguments leave

us unconvinced.

       First, Mr. Lucero has not presented us with any firm evidence that the motion for

downward departure’s description of his aid to the government as “merely collaborative”

is misleading. It may very well be that the alternative description of his testimony as

“critical” was inaccurate. It was, after all, put forward in an attempt to justify a

continuance. Indeed, Mr. Lucero grants it may have involved some “puffery” on the part

of the prosecuting attorney. If the government’s statement in the motion for downward




                                              5
departure was not substantially misleading, then Mr. Lucero’s case for a breach of the

duty of good faith collapses.

       Even accepting Mr. Lucero’s characterization of the “merely corroborative”

statement as misleading does not yield him the relief he desires. The statement does not

rise to a material breach of the duty of good faith because the government fulfilled its

obligations under the plea agreement: it filed the motion for downward departure. Mr.

Lucero must have reasonably expected the government would evaluate his aid when it

did so, and evaluate it in a way different from his own opinion. He was also aware the

district court was not bound by any request or representation of the government. Further,

Mr. Lucero presented his own version of events to the district court. The district court

made it abundantly clear to him it was choosing a sentence it felt appropriate for him

considering all the arguments and granting the downward departure. Mr. Lucero was

promised nothing more and could not have reasonably expected anything more. The

government’s statement in the motion for downward departure had no apparent impact

on the sentencing and certainly was not a material breach of the duty of good faith. Thus

the plea agreement was fully adhered to, and no breach took place.

       AFFIRMED.


                                          ENTERED FOR THE COURT


                                          John C. Porfilio
                                          Senior Circuit Judge

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