09-0842-cr
United States v. Hernandez

                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUM M ARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS CO URT, A PARTY M UST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION
“SUM M ARY ORDER”). A PARTY CITING TO A SUM M ARY ORDER M UST SERVE A COPY OF IT ON
ANY PARTY NOT REPRESENTED BY COUNSEL.


      At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 15 th day of December, two thousand ten.

PRESENT:                 ROBERT D. SACK,
                         REENA RAGGI,
                         GERARD E. LYNCH,
                                 Circuit Judges.
------------------------------------------------------------
UNITED STATES OF AMERICA,

                                 Appellee,
                     v.                                                    No. 09-0842-cr

FRANCISCO HERNANDEZ, a.k.a. JORGE
LUGO, a.k.a. MEADOW,

                                 Defendant-Appellant.
------------------------------------------------------------
FOR APPELLANT:                   Jeremy Gutman, Esq., New York, New York.

FOR APPELLEE:                    Rachel P. Kovner, Katherine Polk Failla, Assistant United States
                                 Attorneys, for Preet Bharara, United States Attorney for the
                                 Southern District of New York, New York, New York.
       Appeal from the United States District Court for the Southern District of New York

(Robert W. Sweet, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court entered on October 10, 2008, is

AFFIRMED.

       Defendant Francisco Hernandez pleaded guilty to a four-count indictment charging

him with conspiracies involving firearms, see 18 U.S.C. §§ 371, 922(a)(1)(A); drugs, see 21

U.S.C. §§ 841(a)(1), 846; and robbery, see 18 U.S.C. § 1951. Sentenced principally to the

statutorily mandated minimum term of 120 months’ imprisonment, see                 21 U.S.C.

§ 841(b)(1)(B), Hernandez presents constitutional and contractual challenges to the

prosecution’s decision not to file a § 3553(e) motion and the district court’s decision not to

compel such a motion. We assume the parties’ familiarity with the facts and record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Constitutional Challenge

       We will generally not review a prosecution decision not to file a § 3553(e) motion

except to ensure against unconstitutional motivation, such as race, ethnicity, religion, or a

reason not rationally related to any legitimate government end. See Wade v. United States,

504 U.S. 181, 186 (1992); United States v. Roe, 445 F.3d 202, 207 (2d Cir. 2006). There is

no suggestion here that the government’s action was invidious. Rather, Hernandez faults the



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district court for failing to review that action for a rational basis. The point merits little

discussion. Our de novo review reveals that the government’s proffered reason for not

making a § 3553(e) motion – Hernandez’s commission of further crimes – clearly bore a

rational relationship to the government’s legitimate interests in deterring crime both generally

and specifically as to persons expecting sentencing consideration.

2.     Contractual Challenge

       To secure a “more searching” review of the government’s decision not to file a

§ 3553(e) motion, Hernandez also asserts breach of the agreement pursuant to which he

pleaded guilty. See, e.g., United States v. Leonard, 50 F.3d 1152, 1157 (2d Cir. 1995).

Courts interpret such agreements like other contracts, see, e.g., United States v. Gregory, 245

F.3d 160, 165 (2d Cir. 2001), mindful of the “special due process concerns for fairness and

the adequacy of procedural safeguards” presented, United States v. Hamdi, 432 F.3d 115,

122-23 (2d Cir. 2005) (internal quotation marks omitted). The primary judicial purpose is

to ascertain and give effect to the parties’ intent as reflected in the language of the agreement.

See, e.g., Compagnie Financiere de CIC et de L’Union Europeenne v. Merrill Lynch, Pierce,

Fenner & Smith Inc., 232 F.3d 153, 157 (2d Cir. 2000). At the same time, we have held that

agreements, such as the one here at issue, include “an implied obligation of good faith and

fair dealing.” United States v. Rexach, 896 F.2d 710, 714 (2d Cir. 1990). We interpret the

agreement de novo, but we examine related district court findings of fact only for clear error.



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See United States v. Roe, 445 F.3d at 206.

       Applying these principles here, we easily conclude that the prosecution was justified

in refusing to file a § 3553(e) motion due to Hernandez’s commission of further crimes.

Under the plain terms of the agreement, Hernandez promised, among other things, to

“commit no further crimes whatsoever.” Agreement at 3. The prosecution promised to file

a § 3553(e) motion “if [it] determine[d] that Hernandez ha[d] provided substantial assistance

in an investigation or prosecution, and if he ha[d] fully complied with the understandings

specified in th[e] Agreement.” Id. at 4. The parties specifically agreed that, “should [the

prosecution] determine . . . that Hernandez has violated any provision of [the agreement],

such a determination will release [the prosecution] from any obligation to file a motion

pursuant to Section 5K1.1 of the Sentencing Guidelines and/or 18 U.S.C. § 3553(e).” Id. at

5. This clear language unmistakably establishes that compliance with Hernandez’s promise

not to commit further crimes was a condition precedent to any prosecution obligation to file

a § 3553(e) motion. See, e.g., Restatement (Second) of Contracts § 226 cmt. a (1981); see

also United States v. Gregory, 245 F.3d at 164. Therefore, Hernandez’s commission of

further crimes absolved the government of its obligation to file a § 3553(e) motion. Even if

the prosecution retained discretion to excuse the non-occurrence of this condition, see, e.g.,

Restatement (Second) of Contracts § 225, Hernandez does not – and cannot – allege

government bad faith in the refusal to exercise that discretion in his favor.



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       Instead, Hernandez argues that because he provided substantial assistance in the

prosecution of other crimes, his own commission of further crimes was not a material breach

of the agreement. Under New York law, however, “‘substantial performance is ordinarily

not applicable to excuse the non-occurrence of an express condition precedent.’” Aetna Cas.

& Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 601 (2d Cir. 2005) (quoting Oppenheimer

& Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 693, 636 N.Y.S.2d 734, 738

(1995)). Rather, a court may excuse non-occurrence of a non-material condition only if

disproportionate forfeiture would result. See Restatement (Second) of Contracts § 229; 14

Williston on Contracts § 43:13. We identify no basis for doing so here because the bar on

further crimes clearly is a material condition in a cooperation agreement. Moreover, we

cannot agree that the assistance provided by Hernandez constituted “substantial

performance” of his obligations under the plea agreement. As the district court observed,

Hernandez’s commission of further crimes made it difficult, if not impossible, for the

government to use him as a witness in other prosecutions. His breach thus went to the heart

of the agreement.

       Finally, relying on United States v. Anzalone, 148 F.3d 940 (8th Cir. 1998),

Hernandez argues that the government cannot withhold a § 3553(e) motion for reasons

unrelated to a defendant’s substantial assistance.    This court has heretofore found it

unnecessary to address the reasoning supporting Anzalone’s split decision. See United States



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v. Padilla, 186 F.3d 136, 142 n.5 (2d Cir. 1999). We need not do so here because the

rationale of that decision does not apply in situations like this one, where the agreement

explicitly grants the prosecution authority to withhold its § 3553(e) motion for violations of

its conditions, including the commission of other crimes. See United States v. Anzalone, 148

F.3d at 942.

       We have considered Hernandez’s other arguments on appeal and conclude that they

are without merit. Accordingly, the judgment of the district court entered on October 10,

2008, is hereby AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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