United States v. Diaz ( 2001 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 00-1783
UNITED STATES,
Appellee,
v.
JOSE A. DIAZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Paul M. Glickman on brief for appellant.
Margaret E. Curran, United States Attorney, Gerard B.
Sullivan, Assistant U.S. Attorney, and Joseph C. Wyderko,
Attorney, Criminal Division, U.S. Department of Justice, on
brief for appellee.
Per Curiam. Defendant-appellant Jose Diaz (“Diaz”) appeals
his sentence after a guilty plea on the ground that the
government breached its plea agreement by failing to recommend
that Diaz receive a three level reduction for acceptance of
responsibility under § 3E1.1 of the United States Sentencing
Guidelines (“Guidelines”). The government counters that it was
not bound by the plea agreement because Diaz violated its terms
when he provided a false statement to Probation Services for
inclusion in the presentence report.
It is well established that if a defendant fails to fulfill
his promises under a plea agreement, the government is released
from its obligations under it. See, e.g., United States v.
Santiago-Gonzalez, 66 F.3d 3, 6 (1st Cir. 1995); United States
v. Baladacchino, 762 F.2d 170, 179 (1st Cir. 1985). The plea
agreement here explicitly stated that it was binding on the
government only if Diaz pleaded guilty to the specified offenses
and “[d]id not engage in any conduct which may constitute
obstruction of justice under § 3C1.1 of the guidelines.”
Obstruction of justice under § 3C1.1 includes “providing
materially false information to a probation officer in respect
to a presentence report or other investigation for the court.”
§ 3C1.1 comment. (n. 4(h)).
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Diaz violated the agreement when he submitted a statement
of responsibility to the probation office in which he stated
that he had not used a “real” gun during the bank robbery. By
claiming that he had used an air gun during the robbery, Diaz
denied an essential element of at least two of the offenses to
which he pleaded guilty. In addition to pleading guilty to
conspiracy and armed robbery charges, Diaz pleaded guilty to
using a “firearm” during and in relation to a crime of violence
under 18 U.S.C. § 924(c) and being a felon in possession of a
“firearm” under 18 U.S.C. § 921(a)(3)(A). Neither a pellet gun
nor a BB gun are firearms within the meaning of the statute or
the Guidelines. 18 U.S.C. § 921(a)(3)(A); U.S.S.G. § 1B1.1
comment. (n.1(e)). The government had extrinsic evidence, as
well as Diaz’s own admission at the plea hearing, that Diaz used
a 9 mm firearm during the bank robbery.
Diaz relies on the sentencing court’s decision to not
enhance his sentence for obstruction of justice to bolster his
contention that he did not breach the plea agreement. Judge
Lagueux’s discretionary decision, however, does not amount to a
finding that Diaz did not obstruct justice within the meaning of
the Guidelines. To the contrary, the sentencing court found,
beyond a reasonable doubt, that Diaz had brandished a 9 mm
firearm during the bank robbery.
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Having found no error in the proceedings below, we hereby
affirm the sentence imposed by the district court. Loc. R.
27(c).
Affirmed.
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