U.S. v. Bermudez

• Decision Date: 23 May 2005
• Docket Number: No. 04-1222.,04-1222.
• Citation: 407 F.3d 536
• Parties: UNITED STATES, Appellee, v. Francisco José BERMÚDEZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 536

407 F.3d 536

UNITED STATES, Appellee, v. Francisco José BERMÚDEZ, Defendant, Appellant.

No. 04-1222.

United States Court of Appeals, First Circuit.

Heard January 5, 2005.

Decided May 23, 2005.

COPYRIGHT MATERIAL OMITTED

George J. West, for appellant.

Donald C. Lockhart, Assistant United States Attorney, with whom Robert Clark Corrente, United States Attorney, and Kenneth P. Madden, Assistant United States Attorney, were on brief, for appellee.

Before TORRUELLA, Circuit Judge, CAMPBELL, Senior Circuit Judge, and LYNCH, Circuit Judge.

CAMPBELL, Senior Circuit Judge.

Francisco José Bermúdez pled guilty in the Rhode Island federal district court to two counts of drug offenses. In the plea agreement and at the plea hearing, Bermúdez admitted that the total drug weight was 8954.06 grams of cocaine. At sentencing, the district court found that Bermúdez had testified falsely at the trial of co-defendant Gonzola Velasquez, thereby relieving the government of any obligation under the plea agreement to file a substantial assistance motion under U.S.S.G. § 5K1.1.¹ The district court further found that Bermúdez did not qualify for a safety valve sentencing reduction under 18 U.S.C. § 3553(f) and U.S.S.G. § 5C1.2 because of his failure to establish that he truthfully provided to the government all information he had regarding the drug offenses. Based on the drug weight admitted by Bermúdez, the district court imposed the mandatory minimum sentence of ten years' imprisonment. See 21 U.S.C. § 841(b)(1)(A).

Bermúdez appeals from his sentence. He contends that the district court erred in not ordering specific performance of the government's agreement to file a substantial assistance motion and in denying him a safety valve reduction, either of which, if applied, would have allowed a sentence lower than the mandatory minimum sentence. See 18 U.S.C. §§ 3553(e), (f). Bermúdez also seeks a remand for resentencing under United States v. Booker, ___ U.S. ___, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), arguing that a jury, not the judge, should have made the factual determinations regarding substantial assistance and safety valve relief. Finding no error, we affirm.

I. Background

On February 9, 2003, Bermúdez and Gonzola Velasquez drove from New York to Rhode Island, carrying with them cocaine for delivery at the home of one Shawn Montegio. Tipped off to the impending delivery by intercepted cell phone conversations, federal agents went to Montegio's house and there arrested Bermúdez, Velasquez, and Montegio in the course of their illegal transaction.

On February 12, 2003, a federal grand jury returned a four-count indictment charging: (1) Bermúdez, Montegio, and Velasquez with conspiring to distribute over five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846; (2) the three men with possessing over five kilograms of cocaine with intent to distribute it, in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 18 U.S.C. § 2; and (3) Montegio with two firearm-related counts not relevant to this appeal.

On July 3, 2003, Bermúdez signed a plea agreement in which he agreed to plead guilty to the two counts naming him and agreed that the total weight of the cocaine was 8954.06 grams. The government agreed to recommend the lowest Guideline sentence or the ten-year mandatory minimum sentence, whichever was greater. The plea agreement provided: "If Defendant qualifies for the `safety valve' provision, 18 U.S.C. § 3553(f), the government will recommend the applicable 2-level decrease under the guidelines."

On July 22, 2003, the district court, after a hearing, accepted Bermúdez's guilty plea. Bermúdez specifically acknowledged the 8954.06 gram figure as to drug weight. At the change of plea hearing, the prosecutor described the elements of the safety valve test, including the fifth element, which he explained requires that "not later than the time of the sentencing hearing, the defendant truthfully provides to the Government all information and evidence that the defendant has concerning the offense or offenses that were part of the same course of conduct." See U.S.S.G. § 5C1.2(a)(5). Bermúdez said he understood the requirements.

On August 8 and 11, 2003, Bermúdez met with the government for two safety valve debriefings. Prior to the second meeting, the parties entered into a new two-page agreement supplementing the original plea agreement. In this supplemental agreement, Bermúdez agreed to be debriefed by federal agents and to testify at any trial. In exchange, the government agreed that, "[i]f Defendant is called as a witness and if Defendant's testimony is truthful, accurate and complete, the Government will move for a downward departure pursuant to § 5K1.1 of the United States Sentencing Guidelines." The agreement was conditioned on Bermúdez providing "truthful, accurate and complete" information, and expressly relieved the government of its obligation to file a substantial assistance motion if Bermúdez failed to provide such information.

The trial of co-defendant Velasquez began on August 13, 2003. Called as a government witness, Bermúdez testified on August 13 and 14. After speaking with the prosecutor and FBI case agent during a lunch break, Bermúdez revised his initial direct examination testimony about the details of his first visit to Montegio's home in the summer of 2002, conceding that his initial testimony had been different. Thereafter, upon cross examination, Bermúdez conceded that he had lied in his earlier testimony, and he furnished details about the charged February 9 drug transaction never previously disclosed to the government. Bermúdez admitted then that the information he had given to the government in his debriefings had not been complete. The jury acquitted Velasquez on all counts.

At Bermúdez's sentencing hearing, the district court found that Bermúdez had given false testimony at the Velasquez trial. Based on that finding, the district court concluded that, under the terms of the supplemental plea agreement, the government was not obligated to file a substantial assistance motion. After reviewing the contradictions and inconsistencies between Bermúdez's trial testimony and the earlier disclosures he made to the government, the court further held that Bermúdez was ineligible for the safety valve reduction. Accordingly, based on the drug weight admitted by Bermúdez, the district court imposed the mandatory minimum sentence of concurrent ten-year terms of imprisonment as to each count and five years of supervised release. See 21 U.S.C. § 841(b)(1)(A).

II. Discussion

A. Substantial Assistance

Bermúdez argues that the district court erred in not ordering specific performance of the government's agreement to file a substantial assistance motion. U.S.S.G. § 5K1.1 provides that "[u]pon 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." Under 18 U.S.C. § 3553(e), substantial assistance may justify a sentence below the statutorily required minimum sentence. U.S.S.G. § 5K1.1, cmt. n. 1.

While we have held that this court ordinarily lacks jurisdiction to review on appeal a district court's refusal to depart downward, United States v. Atwood, 963 F.2d 476, 478 (1st Cir.1992), we may review whether the government's failure to file a substantial assistance motion violated the plea agreement. See, e.g., United States v. Gonzalez-Perdomo, 980 F.2d 13, 15 (1st Cir.1992); Atwood, 963 F.2d at 478 (collecting cases). The latter question is looked at de novo. United States v. Clark, 55 F.3d 9, 11 (1st Cir.1995).

Plea agreements are interpreted under principles of contract law. Id. at 12; Atwood, 963 F.2d at 479. "If the defendant lives up to his end of the bargain, the government is bound to its promises. On the other hand, if the defendant fails to fulfill his promises, the government is released from its agreement. . . ." United States v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir.1987).

Here, the supplemental plea agreement provides that "if [Bermúdez's] testimony or his debriefing by federal agents is not truthful, or accurate, or complete, his plea of guilty shall stand, [and] the Government will not be obligated to adhere to the terms of the plea agreement." Bermúdez argues that he provided substantial assistance to the government, including meeting with federal agents twice and testifying as the key witness against Velasquez over the course of two days of trial. Bermúdez concedes that he "backtracked on a few areas and subsequently revised his testimony," but contends that "on balance a fair reading of all his testimony is that he gave a truthful account."

The district court found that Bermúdez gave false and inconsistent testimony at the Velasquez trial. The court expressly found that Bermúdez had stated in his debriefings with the government in connection with his first visit to Montegio's home that: (1) he knew the purpose of the trip was a drug transaction; (2) the transaction involved five to ten kilograms of cocaine; and (3) he had been paid between $1,000 and $2,000 for his services. On direct examination at the Velasquez trial, however, Bermúdez initially testified that: (1) he did not know for sure whether it was a drug transaction; and (2) he had only been paid $500 for his services. After speaking with the prosecutor and FBI case agent during the lunch break, Bermúdez revised his initial direct examination testimony and reverted to what he had said in the debriefing. He stated that his earlier testimony had been different because this was his first time testifying and he was nervous. On cross examination, Bermúdez conceded that he had "lied" in his earlier testimony.

Beyond other instances of false testimony, the court found "this [instance] alone [] enough to relieve the Government of any...