
USCA1 Opinion

	




          December 9, 1994                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 94-1909                                    UNITED STATES,                                      Appellee,                                          v.                                LUIS EDUARDO PUGLIESI,                                Defendant, Appellant.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                     [Hon. Carmen C. Cerezo, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                          Selya and Boudin, Circuit Judges.                                             ______________                                 ____________________            Miriam Ramos Grateroles on brief for appellant.            _______________________            Guillermo  Gil, United  States  Attorney, Joseph  J.  Frattallone,            ______________                            _______________________        Assistant United States Attorney,  and Jose A. Quiles-Espinosa, Senior                                               _______________________        Litigation Counsel, on brief for appellee.                                 ____________________                                 ____________________                 Per Curiam.  Appellant Luis Eduardo Pugliesi appeals the                 __________            denial  by the  district court  of his  motion to  compel the            government  to perform  its promise  to file  a motion  for a            downward departure if appellant agreed to provide information            which did not prove to be false or misleading.  We affirm.                 Prior to entering into a plea agreement on  November 16,            1993,  Pugliesi was subject to a series of debriefings by the            government.   During the course of  the debriefings, Pugliesi            changed  his  story  and  admits  to  having  provided  false            information.   However,  he  claims that  the information  he            provided as of the date of the agreement was truthful.                 After  signing the  plea agreement,  Pugliesi  agreed to            participate in a polygraph examination on November 23, 1993.             After  the  completion  of   the  examination,  Pugliesi  was            informed  that,  in  the  opinion  of  the  examiner, he  had            provided   answers  which   were  indicative   of  deception.            According  to  the  testimony  of his  case  agent,  Pugliesi            thereupon  admitted that  he  had lied  during the  polygraph            examination and that he had not "been completely truthful" in            the   previous   debriefings.   At    Pugliesi's   subsequent            sentencing,  the  government  refused   to  file  a  downward            departure motion.                 The  district court supportably  found credible the case            agent's  testimony that,  on  November 23,  Pugliesi admitted            having lied when he provided information to the government at            and  after entering the plea agreement.  See United States v.                                                     ___ _____________            St.  Cyr., 977  F.2d  698,  706  (1st  Cir.  1992)  ("In  the            ________            sentencing phase,  credibility determinations lie  within the            domain of the district  court.").  According to the  terms of            the  plea agreement,1  the  government was  thereby under  no            obligation to  recommend a downward departure  at sentencing,            and its decision not to file such a motion was neither in bad            faith nor lacking in  a rational basis.  See United States v.                                                     ___ _____________            Catalucci, No. 93-2129, slip. op. (1st Cir: Sept. 27, 1994).            _________                 Affirmed.                 ________                                            ____________________            1.  The agreement states, in relevant part:                 Should  evidence  of defendant's  mendacity, and/or                 misleading  or  incomplete  replies  surface  after                 defendant['s]  change  of plea,  the  United States                 will not be bound  to file any motions or  make any                 recommendations    favorable   to    defendant   at                 sentencing.                                         -3-
