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 1996-07

United States v. Santana ( 1996 )


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  • July 22, 1996         [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1229
UNITED STATES OF AMERICA,
Appellee,
v.
ANGEL SANTANA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos  Antonio Fust , U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Thomas R. Lincoln, with whom Law Offices of Thomas R. Lincoln was
on brief for appellant.
Juan A. Pedrosa, Assistant United States Attorney, with whom
Guillermo Gil, United States Attorney, Jos  A. Quiles-Espinosa, Senior
Litigation Counsel, and Nelson P rez-Sosa, Assistant United States
Attorney, were on brief for appellee.
Per  Curiam.    Angel   Santana,  one  of  twenty-three
Per  Curiam.
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.
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
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
knowledge about  the drug-related murders, thereby  relieving the
government of  its contingent obligation.   See United  States v.
Santiago-Gonzalez,
    66 F.3d 3
    , 7 (1st Cir. 1995); United States v.
Tilley,
    964 F.2d 66
    , 70  (1st  Cir.  1992);  United States  v.
2
Gonzalez-Sanchez,
    825 F.2d 572
    , 578 (1st Cir.), cert. denied,
    484 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
(1st  Cir.  1995), but  conduct de  novo  review of  its ultimate
finding  that   the  plea  agreement  was  not  breached  by  the
government.   See
    id. at 11
    ;  United States v.  Atwood,
    963 F.2d 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.
3