U.S. v. Hernandez ( 1993 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________________
No. 92-7485
_____________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JOE HERNANDEZ,
Defendant-Appellant.
_________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
_________________________________________________
( July 7, 1993)
Before SMITH, DUHÉ, and WIENER, Circuit Judges.
WIENER, Circuit Judge:
Pursuant to a plea agreement which provided, inter alia, that
the government "may" make a motion for a downward departure if the
defendant renders substantial assistance, Joe Hernandez pleaded
guilty to, and was convicted on, one count of violating 18 U.S.C.
§ 922(g)(1) (felon in possession of a firearm). As he had been
convicted of three prior felonies, Hernandez received a mandatory
minimum sentence of fifteen years under 18 U.S.C. § 924(e). On
appeal, Hernandez asserts that the government breached the plea
agreement by failing to make a motion for downward departure, and
that the district court erred in finding that Hernandez had not
provided substantial assistance. Finding that in the plea
agreement there were significant ambiguities which were not
resolved by the district court, we vacate the sentence imposed and
remand this case for resentencing.
I
FACTS
Hernandez was arrested in in Corpus Christi, Texas, for public
intoxication. During a search of Hernandez's person conducted
incident to the arrest, a .25 caliber pistol was found by the local
police. When they learned that Hernandez had several prior felony
convictions, his case was transferred to the Bureau of Alcohol,
Tobacco, and Firearms (ATF), which initiated a federal prosecution
under 18 U.S.C. § 922(g)(1). As a result of his three prior felony
convictions, Hernandez was subject to a statutory minimum sentence
under § 924(e) of fifteen years (180 months).
Hernandez entered a plea of guilty to the firearms charge,
after he and the government entered into a written plea agreement.
It provided that in return for Hernandez's guilty plea the
government would recommend credit for acceptance of responsibility
and a sentence at the low end of the guideline range. The
government concedes that "[a]t rearraignment, the [written]
agreement was effectively amended by the Assistant United States
Attorney [AUSA] who, after listing the terms of the written
agreement," stated:
THE COURT: Is there a plea agreement?
MR. CUSICK: Yes, your honor. It's changed through Mr.
Hernandez's plea of guilty to a single-count indictment. The
Government has agreed pursuant to Rule 11(E)(1)(b) to
recommend that he be given credit for acceptance of
2
responsibility and that he be sentenced at the bottom of any
applicable sentencing guidelines. Although this agreement has
been reduced to writing and signed by the parties and is
tendered to the Court for filing, I would point out that it is
implicit although not spelled out in the agreement that if Mr.
Hernandez should provide substantial assistance to the
Government, either I guess through truthful information and
testimony if necessary, that the Government may make a motion
for downward departure at sentencing, and the extent of any
downward departure would be in the sole discretion of the
Court to make.1
The government acknowledges that the agreement which it made with
Hernandez expressly provided that "[i]f [Hernandez] provides
assistance, the government may make a motion for downward departure
at the time of sentencing."
After the court accepted the guilty plea, but before the
sentencing hearing, Hernandez provided "assistance" in two ways.
First, he gave the government a hand-drawn map that ostensibly
showed where a stash of cocaine could be found. The map was passed
among several agents, but was never fully investigated (i.e., none
of the agents used it to look for the stash of cocaine). Second,
Hernandez provided the government with information (which the
government insists was "stale") concerning drug dealing and
illegally possessed guns in the Corpus Christi area.
Hernandez asserts that he provided the government with all of
the information that it requested, but that the government simply
failed to follow up on the information that he provided. In other
words, Hernandez claims to have been ready and willing to provide
any and all assistance that he was able to furnish, but the
government failed to give him the requisite opportunity.
1
(Emphasis added).
3
At the sentencing hearing, Hernandez proffered evidence
concerning the amount of assistance that he had rendered. The Pre-
Sentence Report (PSR) recommended a sentencing guideline range of
188-235 months and noted the 180 month (15 years) mandatory minimum
sentence under § 924(e). Taking the position that any assistance
Hernandez had provided was insubstantial, the government refused to
make a motion for downward departure under either U.S.S.G. § 5K1.1
or 18 U.S.C. § 3553(e). After giving Hernandez the opportunity to
withdraw his plea when the government refused to make a motion for
downward departure))an opportunity that was refused))the court
sentenced him to 180 months, which was eight months less than the
lowest end of the applicable guidelines range and precisely the
mandatory minimum of fifteen years. Hernandez timely appealed.
II
ANALYSIS
A. Standard of Review
We have recently stated that "[w]hether the government's
conduct violated the terms of a plea agreement is a question of
law."2 The defendant has the burden of proving the underlying
facts that establish a breach by a preponderance of the evidence.3
"'In determining whether the terms of a plea agreement have been
2
United States v. Watson, 988 F.2d 544, 548 (5th Cir. 1993)
(citing United States v. Valencia, 985 F.2d 758, 760 (5th Cir.
1993)).
3
Id. (citing United States v. Conner, 930 F.2d 1973, 1076
(4th Cir.), cert. denied, 112 S. Ct. 420 (1991), and United States
v. Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied, 488 U.S.
863 (1988)).
4
violated, the court must determine whether the government's conduct
is consistent with the parties' reasonable understanding of the
agreement.'"4
B. Hernandez's Claims of Error
1. What Constitutes "Substantial Cooperation"?
The thrust of Hernandez's claim is that, after he provided
every bit of assistance within his power, the government breached
the plea agreement by refusing to make a motion for downward
departure. His claim, however, runs headlong into the district
court's explicit finding that he did not provide "substantial"
assistance to the government. As noted above, in a sentencing
proceeding such as the one involved in the instant case, the
district court must determine whether the government's conduct is
consistent with the parties' reasonable interpretations of the plea
agreement))here, the parties' interpretation of what might
constitute substantial assistance. No such finding was made by the
district court; it merely concluded))without making any discrete
factual determinations as to the reasonable expectations of either
Hernandez or the government))that the assistance provided by
Hernandez was not "substantial."
As noted, Hernandez provided the government with a map,
purporting to show the location of a stash of cocaine, as well as
information about drugs and guns in Corpus Christi. At least
implicitly, neither the government nor the district court deemed
this information to be "substantial." The record, however, is
4
Id. (quoting Valencia, 985 U.S. at 761).
5
silent as to just what the parties did believe, at the time the
plea agreement was entered into, would constitute substantial
assistance.
When he explained the amended plea agreement to the sentencing
court, the AUSA described the assistance that the government
thought Hernandez might provide as "either I guess . . . truthful
information and testimony if necessary." The government never
requested that Hernandez testify in proceedings against other
defendants in accordance with the agreement, and it never
determined whether the information he provided (principally the
map) was truthful. Nothing in the record indicates that, when the
agreement was made, the government was only prepared to make a
motion for downward departure if Hernandez provided information
that actually helped bring about other prosecutions. The record is
simply devoid of information concerning what quantity or quality of
information and cooperation the parties contemplated that Hernandez
would (but did not) provide in this case.
Moreover, as was frankly conceded by the government to this
court at oral argument, the agreement was made when Hernandez had
been incarcerated for over six months. Surely, when the bargain
was made the government could have hoped for little more than that
which Hernandez eventually provided))"jailhouse scuttlebutt."
Again, it is unclear from the record what more Hernandez could have
provided))or, more to the point, what more the government could
possibly have contemplated that he would provide))in order to earn
a motion for downward departure.
6
On remand, the district court must also consider the
likelihood (or fact) that the assistance Hernandez could and did
provide failed to increase in value (actually had no chance to
become what the government might consider "substantial") due to the
inaction of the investigators vis-à-vis the information. We have
stated that when a defendant, "in reliance on [a government
representation], accepted the government's plea offer and did his
part, or stood ready to perform but was unable to do so because the
government had no further need or opted not to use him, the
government is obliged to move for a downward departure."5 In the
instant case, Hernandez provided the government with different
types of information, and the government failed to follow up on any
of it. Considering the type of information that the government
should have expected from a defendant like Hernandez, who had been
incarcerated for over six months, we find it difficult to conceive
of what more Hernandez could have provided that would be
substantial without any subsequent verification by the
investigators))verification that was clearly necessary but was
never performed.
2. The Use of "May" in the Plea Agreement
The government's oral explanation of the plea agreement was to
the effect that if Hernandez provides substantial assistance, "the
5
United States v. Melton, 930 F.2d 1096, 1098-99 (5th Cir.
1991); see Watson, 988 F.2d at 552-53 (discussing Melton's
continued vitality after the Supreme Court's decision in Wade v.
United States, ___ U.S. ___, 112 S. Ct. 1840 (1992), when the
government's discretion to make a § 5K1.1 motion is limited by a
plea agreement).
7
government may make a motion for downward departure at
sentencing."6 The record sheds no light on the degree of
discretion, if any, the parties intended for the government to
retain by the use of the permissive word "may" (as opposed to the
mandatory word "shall"). We have observed that plea agreements
like the one involved here usually contain "shall."
In Wade v. United States,7 the Supreme Court held that a trial
court could not depart downwardly under § 5K1.1 in the absence of
a government motion to that effect. The Court also held that
§ 5K1.1 and its statutory counterpart, 18 U.S.C. § 3553(e), gives
the government "a power, not a duty" to file such a motion.8 We
have held, however, that the discretion to make a § 5K1.1 motion,
which was discussed in Wade, can be bargained away by the
government in a plea agreement.9 In the instant case, the
government's confection of the agreement could be viewed cynically
as an attempt to make to the defendant believe that the government
had bargained away its discretion to make or not make a motion when
it entered the plea agreement, while subtly but intentionally
retaining its discretion through the use of the non-mandatory
"may."
We find it difficult if not impossible to believe that any
defendant who hopes to receive a motion for a downward departure
6
(Emphasis added).
7
112 S. Ct. 1840 (1992).
8
Id. at 1843.
9
See Watson, 988 F.2d at 552-53.
8
would knowingly enter into a plea agreement in which the government
retains unfettered discretion to make or not to make that motion,
even if the defendant should indisputably provide substantial
assistance. On remand of this case, the government should not be
heard to make the legalistic argument that merely by using the word
"may" the government is free to exercise the prosecutor's
discretion whether to make the motion for downward departure.
Given the admirably candid concessions it made to this court in
oral argument, the government cannot hereafter insist that
Hernandez knowingly and intentionally walked into such an illusory
"bargain." Frankly, we are incredulous that any defendant would
consciously make such an obviously bad deal absent some extremely
compelling need to plea rather than stand trial.
3. Departures Below the Mandatory Minimum
At oral argument, the parties discussed the general question,
does the district court's authority to depart below a mandatory
minimum depend upon whether the government's downward departure
motion is made under § 5K1.1 or under 18 U.S.C. § 3553(e)? The
agreement in the instant case does not specify under which
provision the motion might be made in the event that Hernandez
should provide substantial assistance. As the agreement was thus
silent on this issue, the government's potential obligation to move
for a downward departure is even more questionable.
After reviewing the supplemental briefs submitted to us, and
conducting independent research on the matter, we join the majority
of circuits which hold that the district court may depart below a
9
mandatory minimum irrespective of whether the departure motion is
made under either § 5K1.1 or § 3553(e).10 As our colleagues on the
Fourth Circuit have stated: "Section 5K1.1 governs all departures
from guideline sentencing for substantial assistance, and its scope
includes departures from mandatory minimum sentences permitted by
11
18 U.S.C. § 3553(e)."
III
CONCLUSION
A substantial question remains unanswered concerning the
intentions of the parties as to the nature, quality, and quantity
10
See United States v. Cheng Ah-Kai, 951 F.2d 490, 492-93
(2d Cir. 1991); United States v. Wade, 936 F.2d 169, 171 (4th
Cir. 1991); United States v. Keene, 933 F.2d 711, 714 (9th Cir.
1991); see also U.S.S.G. § 5K1.1 application note 1 ("Under
circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. §
994(n), as amended, substantial assistance in the investigation
or prosecution of another person who has committed an offense may
justify a sentence below a statutorily required minimum
sentence."(emphasis added)). But see United States v. Hawley,
984 F.2d 252, 253-54 (8th Cir. 1993)(holding that a "sentencing
court can depart below the statutory mandatory minimum sentence
only if the government files a motion for such a departure
pursuant to 18 U.S.C. § 3553(e)" and not merely U.S.S.G. §
5K1.1); United States v. Rodriguez-Morales, 958 F.2d 1441, 1444-
45 (8th Cir.), cert. denied, __ U.S. __, 113 S. Ct. 375 (1992).
11
Wade, 936 F.2d at 171.
In its initial brief to this court, the government also
argued that Hernandez had waived any error by declining the
district court's offer to withdraw his guilty plea. We recognize
that when the court made the offer to Hernandez, it was giving
him little more than a Hobson's choice))if he withdrew his plea
at that point, he would realize no benefit as the government had
already received all the benefit from his waiver of rights, i.e.,
he had given substantial prejudicial evidence that could be used
against him. In asserting during oral argument and in subsequent
briefing to this court that this case should be remanded for
additional factfinding and resentencing, however, we understand
the government to have abandoned its claim that Hernandez waived
any potential error by refusing the court's offer to withdraw his
plea.
10
of the information Hernandez was expected to provide in order to
constitute "substantial assistance" under the subject plea
agreement. Only after it first determines what the parties meant
by using that term can the district court properly decide whether
the government breached the plea agreement by refusing to move for
a downward departure. The court must also determine the intentions
of the parties concerning the use of the word "may" in the
agreement))even though we have serious doubts that either party
meant for the government to retain unbridled discretion merely by
using that word. Finally, we note that if the district court
should be inclined to depart below the mandatory minimum sentence
following a motion by the government to depart downward under
either U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e), the court is not
prohibited from so doing.
For the the foregoing reasons, we VACATE Hernandez's sentence
and REMAND this case for additional determinations))and eventual
resentencing))consistent with this opinion.
11