United States v. Santana ( 1996 )

USCA1 Opinion

          July 22, 1996         [NOT FOR PUBLICATION]



                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT


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        No. 95-1229



                              UNITED STATES OF AMERICA,



                                      Appellee,



                                          v.



                                    ANGEL SANTANA,



                                Defendant, Appellant.




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                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                           FOR THE DISTRICT OF PUERTO RICO



                    [Hon. Jos  Antonio Fust , U.S. District Judge]
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                                        Before



                               Torruella, Chief Judge,
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                            Coffin, Senior Circuit Judge,
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                               and Cyr, Circuit Judge.
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             Thomas R. Lincoln, with whom Law Offices of Thomas R. Lincoln was
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        on brief for appellant.

             Juan A. Pedrosa, Assistant United States Attorney, with whom
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        Guillermo Gil, United States Attorney, Jos  A. Quiles-Espinosa, Senior
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        Litigation Counsel, and Nelson P rez-Sosa, Assistant United States
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        Attorney, were on brief for appellee.






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                    Per  Curiam.    Angel   Santana,  one  of  twenty-three
Per  Curiam.
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          defendants involved  in an extensive drug  trafficking operation,



          claims  that the  government  failed to  comply  with their  plea



          agreement  by  refusing  to  request  a "substantial  assistance"



          departure at  sentencing.  See  18 U.S.C.    3551 and  U.S.S.G.
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          5K1.1.  We find no error.



                    Santana  pled guilty  to  conspiracy  to  possess  with



          intent to distribute in excess of 2,300 kilograms of cocaine. See
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          21 U.S.C.    841(a)(1), 846.  The plea agreement required Santana



          to   cooperate   in  the   government's  investigation   of  drug



          trafficking,  drug-related  murders,  firearms  trafficking,  and



          other criminal  violations, and to continue  to provide complete,



          truthful  and accurate  information and  testimony on  an ongoing



          basis.   In return, the  government agreed to  request a downward



          departure for "substantial assistance."



                    Santana contended below that  he complied with the plea



          agreement  by  providing information  which  the  government used



          against his codefendants,  and by  testifying at the  trial of  a



          codefendant.   Thus, he argued, the government acted in bad faith



          by  refusing to  request a  downward departure.   The  government



          responded, and  the district court agreed,  that Santana breached



          the  plea agreement by failing  to disclose, inter  alia, all his
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          knowledge about  the drug-related murders, thereby  relieving the



          government of  its contingent obligation.   See United  States v.
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          Santiago-Gonzalez, 66 F.3d 3, 7 (1st Cir. 1995); United States v.
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          Tilley,  964  F.2d  66, 70  (1st  Cir.  1992);  United States  v.
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                                          2

























          Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir.), cert. denied, 484
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          U.S. 989 (1987).



                    We review the  district court's factual findings  under



          the "clear error" standard, United States v. Clark, 55 F.3d 9, 11
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          (1st  Cir.  1995), but  conduct de  novo  review of  its ultimate
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          finding  that   the  plea  agreement  was  not  breached  by  the



          government.   See  id. at 11;  United States v.  Atwood, 963 F.2d
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          476, 478  (1st Cir. 1992).  There is ample record support for the



          district  court ruling  that the  government reasonably  regarded



          Santana's  failure to  disclose  all he  knew about  drug-related



          murders,  among other matters, as a material breach of their plea



          agreement.   As Santana failed  to fulfill  a material  condition



          precedent to the government's  obligation to recommend a downward



          departure for substantial assistance, the government was under no



          obligation to do so.



                    Affirmed.
Affirmed.
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