United States v. Galan-Morales ( 2002 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 00-50086
Civil Docket # DR-98-CR-571-ALL-FB
_______________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
JUAN JOSE GALAN-MORALES, also known as Juan Jose Galan,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
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April 17, 2002
Before JOLLY, JONES, and BARKSDALE, Circuit Judges.
EDITH H. JONES, Circuit Judge:*
The appellant pled guilty to the charge of engaging in a
continuing criminal enterprise in violation of 21 U.S.C. § 848. He
was sentenced, inter alia, to 250 months imprisonment. On appeal,
Galan asserts that the government breached the plea agreement by
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
failing to request a downward departure and by failing to explain
the full extent of Galan’s cooperation to the district court at
sentencing. He also denies that his guilty plea was supported by
a sufficient factual basis and challenges the waiver of appeal in
the plea agreement. Finding no reversible error, we affirm the
conviction and sentence.
Twice in the written plea agreement, the government
reserved the right to solely determine whether Galan’s cooperation
was truthful and substantial so as to encourage the government to
recommend a downward departure under U.S.S.G. § 5K1.1. This court
has held that when a plea agreement expressly states that the
government retains sole discretion whether to submit a motion for
downward departure, the refusal to do so is reviewable only for
unconstitutional motives. United States v. Price, 95 F.3d 364, 368
(5th Cir. 1996). Galan’s counsel downplays this rule by suggesting
that in open court, both the judge and prosecutor made misleading
statements to Galan concerning the government’s discretion to
suggest downward departure. Having reviewed pertinent portions of
the transcripts of those hearings, we disagree with Galan’s
characterization of the record. In instances where the prosecutor
referred to the possibility of a § 5K1.1 motion, he also said there
were “no guarantees,” and the district court’s statements
corroborate this explanation. Further, the cases cited by Galan
are distinguishable, because they involve written cover letters
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that effectively modified the written plea agreements. See, e.g.,
United States v. Melton, 930 F.2d 1096, 1098 (5th Cir. 1991);
United States v. Fields, 906 F.2d 139, 142 (5th Cir. 1990). And in
another case, this court looked outside the four corners of the
plea agreement and found the defendant’s guilty plea involuntary,
because, during the rearraignment hearing, the district court
misrepresented that it could consider a downward departure under
§ 5K1.1. even if the government did not make such a request.
United States v. Amaya, 111 F.3d 386, 387-88 (5th Cir. 1997). In
sum, the statements made by the government, defense counsel and the
district court at rearraignment were simply too ambiguous to
overcome the clear language of the plea agreement.
Galan next argues that the government breached the plea
agreement by failing to tell the district court at sentencing of
the full extent of his cooperation. Such an omission can breach a
plea agreement when the agreement calls for the government to make
known to the sentencing court the extent of the defendant’s
truthful and substantial cooperation. United States v. Hooten, 942
F.2d 878, 883 (5th Cir. 1991). The government’s failure to inform
the sentencing court of the defendant’s assistance does not
constitute reversible error, however, when the court is generally
aware of the defendant’s cooperation and the extent thereof. Id.
at 884.
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The extent of Galan’s cooperation became a matter of
vigorous dispute, as Galan challenged the government’s failure to
request a § 5K1.1 downward departure. Although Galan testified for
the government in the Iglesias prosecution, he had also sent
letters to potential witnesses, at least one of which could be
characterized as threatening. The government had determined
Galan’s effectiveness as a witness was ruined by these letters.
Defense counsel also told the court that Galan gave information to
the Customs people a few times; that his name was used as a
potential witness by prosecutors in trying to induce other guilty
pleas; and that he gave information to the government concerning
dirty agents. A DEA agent testified concerning information he
received from Galan about several individuals. As a result, the
district court was generally informed from all these sources of the
extent of Galan’s cooperation. As we said in Hooten, “this case
clearly does not present a situation in which the government’s
failure to act in a more affirmative manner violated the essence of
the plea agreement so as to require resentencing.” Hooten, 942
F.2d at 884.
Because Galan’s challenge to the factual basis supporting
his plea was not raised in the district court, we review it for
plain error only. To be guilty of engaging in a continuing
criminal enterprise, Galan must have “obtained substantial income
or resources” from his involvement in a series of drug offenses.
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21 U.S.C. § 848(c)(2)(B). Galan argues that the amount of income
he obtained through his drug trafficking was not “substantial” as
required by the CCE statute. During the rearraignment hearing,
changes were made to the written factual basis for the plea, and
the district court posed questions to Galan. Galan’s written and
oral statements indicate that he helped transport numerous loads of
marijuana for $3,000 to $15,000 per load and that he received other
considerable sums from drug proceeds. There was no error, much
less plain error, in the district court’s finding that the plea had
a sufficient factual basis.
Galan’s final issue challenges the sentence for his
crime. This matter was, however, expressly waived in the plea
agreement, and Galan has not established the unenforceability of
that agreement.
For the foregoing reasons, the conviction and sentence
are AFFIRMED.
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