United States v. Gonzalez-Negron ( 1993 )

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2224
UNITED STATES,
Appellee,
v.
JOSE R. GONZALEZ-NEGRON,
Defendant, Appellant.
No. 93-1201
UNITED STATES,
Plaintiff, Appellee,
v.
JOSE R. GONZALEZ-NEGRON,
Defendant, Appellant.
ERRATA SHEET
The opinion of this Court issued on August 23, 1993, is
amended as follows:
On cover sheet change the word "Appeal" to Appeals.
August 23, 1993
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 92-2224
UNITED STATES,
Appellee,
v.
JOSE R. GONZALEZ-NEGRON,
Defendant, Appellant.
No. 93-1201
UNITED STATES,
Plaintiff, Appellee,
v.
JOSE R. GONZALEZ-NEGRON,
Defendant, Appellant.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Hector M. Laffitte, U.S. District Judge]
Before
Cyr, Boudin and Stahl,
Circuit Judges.
Benicio Sanchez Rivera, Federal Public Defendant, and Miguel
A.A. Nogueras-Castor, Assistant Federal Public Defender, on brief
for appellant.
Charles E. Fitzwilliam, United States Attorney, Jose A.
Quiles-Espinosa, Senior Litigation Counsel, and Ernesto
Hernandez-Milan, Assistant United States Attorney, on brief for
appellee.
Per Curiam. Defendant-appellant Jose R. Gonzalez-
Negron seeks to have his sentence vacated and recalculated in
the district court on the grounds that the government
breached its plea agreement with him. In particular,
defendant contends the government promised to file a 5K1.1
motion for downward departure, but failed to do so. The
district court found that the government made no such
promise. Appellant further argues that the district court
erred in concluding that it had no authority to grant a
5K1.1 departure absent a motion by the government. We
affirm.
Background
Appellant pled guilty to two counts of a four-count
indictment charging him with stealing and concealing firearms
contained in packages intended to be conveyed or delivered by the
Postal Service and which he came to possess as a Postal Service
employee, in violation of 18 U.S.C. 1709, 922(j) and
924(a)(2). In return for appellant's guilty plea to counts one
and two, the government agreed to request dismissal of counts
three and four and, at the time of sentence, to inform the Court
of "the extent and nature of defendant's cooperation." The plea
agreement further provided as follows:
6. [Defendant enters the agreement]
without . . . promises from the
[government] other than those explicitly
indicated in this document.
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7. No additional promises, terms or
conditions have been entered into other
than those set forth in this plea
agreement and none will be entered unless
in writing and signed by all parties.
The Pre-Sentence Report (PSR) set forth the following
facts. On November 8, 1991, a registered parcel containing two
revolvers was mailed from Birmingham, Alabama and an unregistered
parcel containing two pistols was mailed from Miami, Florida.
Both packages were addressed to a gun shop in Bayamon, Puerto
Rico. The packages were stolen from the Bayamon branch Post
Office on November 13, 1991. One of appellant's co-workers told
postal inspectors that appellant was responsible for the thefts.
A few weeks after the theft, appellant sold one of
the pistols to a Puerto Rico Police Department undercover agent.
Appellant sold the other pistol to an acquaintance for $700. A
third firearm was discovered by appellant's father in appellant's
car. In an interview with a postal inspector, appellant stated
that he had received from his co-worker a yellow slip of paper
for retrieving the packages. He had given the slip to his
neighbor, a minor, who subsequently obtained the packages and
delivered the firearms contained therein to appellant.
The PSR reiterated the terms of the plea agreement,
including that "the government will . . . inform the court at the
time of sentencing regarding the extent and nature of whatever
cooperation is provided by the defendant." The probation officer
recommended a base offense level (BOL) of 12, to be increased by
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1 level because the offense involved more than two, but less than
five, firearms. The PSR further recommended an upward adjustment
in the BOL of two levels for appellant's role in the offense and
a downward adjustment of two levels for his acceptance of
responsibility. Based upon the recommended total offense level
of 13 and a criminal history category of I, the probation officer
arrived at a guideline imprisonment range of 12 to 18 months.
In discussing factors that may warrant a departure,
the PSR advised as follows:
A downward departure may be considered by
the Court based on the cooperation which
the defendant has afforded government
authorities. According to Postal
Inspector J.R. Cottes, as a result of
information provided by the defendant,
accomplice Jacques Orsini-Martinez, a
minor, was arrested and successfully
prosecuted by state authorities.
The PSR also noted that appellant had been arrested by local
authorities and charged with unlawful sale and illegal possession
of a firearm, arising out of the same facts underlying the
federal indictment. Trial was at that time pending in the Puerto
Rico Superior Court.
At the sentencing hearing on October 7, 1992, the
court began by asking appellant if he had anything to say in
mitigation of punishment. Appellant (through his counsel)
responded by stating that he had been informed that the
government would not move for a downward departure pursuant to
U.S.S.G. 5K1.1. Appellant objected that he had provided
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substantial assistance to the government, resulting in successful
prosecution in the Puerto Rico courts of a minor who was involved
in the offense with him. Appellant contended that the
government's failure to make a 5K1.1 motion constituted a breach
of the plea agreement.
The court asked the government to respond and
specifically asked, pursuant to the plea agreement, to be
informed about the defendant's cooperation. The government
stated that at the time the plea agreement was entered, the type
of cooperation expected from appellant was the surrender of the
two missing firearms or the identification of the persons to whom
they'd been delivered. This cooperation was not received.
Appellant neither delivered the guns to the government nor
identified the persons to whom he had delivered them.
Appellant then argued that he had provided
cooperation in locating the missing weapons by meeting with a
special agent of the federal Bureau of Alcohol, Tobacco and
Firearms and telling him to whom he had given the firearms. In
addition, he had met with one of the recipients of the missing
firearms. That person was murdered on the day after the meeting,
defeating appellant's plans to retrieve the firearm. Appellant
attempted, also unsuccessfully, to locate the recipient of the
other missing weapon. In view of this cooperation, appellant
argued that the government's refusal to move for a 5K1.1
departure was arbitrary and capricious.
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The district court ruled that in the absence of a
motion by the government, and without any evidence that "the
government is lying or is not telling the truth or is hiding
evidence," it was without authority to depart from the guidelines
pursuant to U.S.S.G. 5K1.1. The court sentenced appellant to
twelve months' imprisonment on each count, to be served
concurrently. The sentencing judge explained that he was
imposing a sentence at the low end of the guideline range
"because of [appellant's] youth and the fact that he has
cooperated in a way, not too much but in a way with the local
government, but it is not enough for a departure under Section 5K
of the guidelines."
On October 13, 1992, appellant filed a notice of
appeal (Appeal No. 92-2224). The next day, appellant filed with
the district court a motion to correct or reduce sentence
pursuant to Fed. R. Crim. P. 35(c). Appellant requested a
hearing on the issue of the government's breach of its obligation
under the plea agreement to move for a downward departure from
the guidelines pursuant to U.S.S.G. 5K1.1. This court remanded
to the district court for a ruling on the Rule 35(c) motion.
The district court held a hearing on appellant's Rule
35(c) motion on January 28, 1993. The court ruled that the plea
agreement did not provide that the government would move for a
reduction pursuant to U.S.S.G. 5K1.1. Appellant protested that
it was his understanding when he entered the plea agreement that
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"the Government would advise [the court] as to what he cooperated
. . . so that [the court] could make the downward departure under
5K." The district court, citing the "zipper clause" in the plea
agreement, providing that no additional promises would be made
unless in writing and signed by both parties, ruled that the
government was only obliged to advise the court of appellant's
cooperation, but not to move for a 5K1.1 reduction. The court
found that the government had met its obligation:
They complied with that part of their
agreement, and I remember they told the
court what has happened with the weapons.
So they did comply by informing the
court.
Therefore, the district court denied appellant's Rule 35(c)
motion. Appellant filed this appeal.
Discussion
Breach of Plea Agreement
Regardless whether we apply a clearly erroneous or de
novo standard of review to the district court's determination
that the plea agreement was not violated, compare United States
v. Tilley, 964 F.2d 66, 71 (1st Cir. 1992) (applying clearly
erroneous standard), with Kingsley v. United States, 968 F.2d
109, 114 (1st Cir. 1992) (applying de novo standard), we uphold
the district court's finding of no breach. The district court
found that the plea agreement did not include a promise by the
government to move for a reduction of sentence pursuant to
5K1.1. That finding is fully supported by the record. The
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plea agreement makes no mention of 5K1.1. Nor does appellant
contend that any other written or oral agreement was entered.
Appellant merely contends that he inferred from the
government's promise to inform the court of his cooperation that
it would also move for a 5K1.1 departure. The plea agreement
specified, however, that the government had not made any
additional promises and that "none will be entered unless in
writing and signed by all parties." At the guilty plea hearing,
appellant specifically acknowledged that "everything that was
promised [him] is included, is inserted in this document which
means that anything else which is not here does not exist or is
not binding upon the government or upon [him]."
Although appellant's reasonable understanding of the
government's obligations under the plea agreement should be
enforced, in this case a promise to move for a departure under
5K1.1 could not reasonably be implied from the plea agreement's
promise to inform the court of the extent of appellant's
cooperation. See, e.g., United States v. Massey, No. 92-3409,
1993 U.S. App. LEXIS 16409 (10th Cir. July 1, 1993) (rejecting
appellant's argument that plea agreement, providing only that the
government would inform the court of the extent of defendant's
cooperation, obligated the government to move for a 5K1.1
departure). As we said in United States v. Atwood, 963 F.2d 476,
479 (1st Cir. 1992), "[i]t is nose-on-the-face plain that the
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[plea agreement] did not obligate the government to move for a
downward departure based on appellant's cooperation."
Appellant does not contend that the government
refused to inform the court of the "extent and nature" of his
cooperation. Rather, appellant's complaint is that the
government refused to file a 5K1.1 motion. As the government
never promised to make a 5K1.l motion, the government did not
violate the plea agreement by failing to request a downward
departure.
Section 5K1.1 Departure
Appellant argues that the district court
misinterpreted U.S.S.G 5K1.1 as requiring a government motion as
a prerequisite to a downward departure based upon appellant's
substantial assistance. We disagree. Section 5K1.1 provides,
in relevant part, as follows:
Upon motion of the government stating
that the defendant has provided
substantial assistance in the
investigation or prosecution of another
person who has committed an offense, the
court may depart from the guidelines.
U.S.S.G 5K1.1. As this court has recently noted, "a government
motion is a sine qua non to a departure for a defendant's
substantial assistance, see Wade v. United States, U.S. , ,
112 S. Ct. 1840, 1843, 118 L.Ed. 2d 525 (1992). . . ." United
States v. Mariano, 983 F.2d 1150, 1155 (1st Cir. 1993); see also,
United States v. Atwood, 963 F.2d at 479. In Wade v. United
States, 112 S. Ct. 1840, the Supreme Court held that the
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government's decision not to move for a downward departure
pursuant to 5K1.1 was subject to judicial review and reversal if
the refusal is found to be based upon an unconstitutional motive.
The Court held that an arbitrary refusal of the government to
file a 5K1.1 motion, in that it "was not related to any
legitimate government end," would entitle appellant to relief.
Id. at 1844.
At his sentencing hearing, appellant argued that the
government's failure to move for a 5K1.1 departure was arbitrary
and capricious. As in Wade, however, appellant's only support
for his position was the extent of cooperation provided. The
Court in Wade held that "[t]his of course, was not enough, for
although a showing of assistance is a necessary condition for
relief, it is not a sufficient one." Id. Similarly, in this
case, even assuming that appellant's assistance was
"substantial," he is not entitled to relief. The government
explained at the sentencing hearing that the reason it did not
move for a downward departure was that appellant had not
fulfilled his promise to deliver the missing guns or provide the
names of the persons to whom he sold them. The government's
failure to move for a departure for this reason is not arbitrary
or capricious. The district court did not err in determining
that it had no authority to grant a downward departure pursuant
to U.S.S.G. 5K1.1 absent a motion from the government.
Appellant's conviction and sentence are affirmed.
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