U.S. v. Franco-Lopez, 00-50422.

• Decision Date: 27 November 2002
• Docket Number: No. 00-50422.,00-50422.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Raul FRANCO-LOPEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 984

312 F.3d 984

UNITED STATES of America, Plaintiff-Appellee, v. Raul FRANCO-LOPEZ, Defendant-Appellant.

No. 00-50422.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 11, 2002.

Filed November 27, 2002.

James B. Rudolph, David Songco, San Diego, CA, for the defendant-appellant.

Renée M. Bunker, Assistant United States Attorney, and Jill L. Burkhardt, Assistant United States Attorney, Appellate Section, Criminal Division, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; William B. Enright, District Judge, Presiding. D.C. No. CR-99-03093-WBE.

Before WARDLAW and BERZON, Circuit Judges, and ISHII,^* District Judge.

OPINION

BERZON, Circuit Judge.

Pursuant to a plea agreement, Raul Gilberto Franco-Lopez pled guilty to the crime of possession with intent to distribute marijuana in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. He contends that the government violated the plea agreement and that he is entitled to specific performance of that agreement.

We hold that the government indeed breached the plea agreement, but that the appropriate remedy for that breach, if any, can only be determined after further proceedings upon remand.

BACKGROUND

In December 1998, undercover officers began investigating Franco-Lopez's suspected role in smuggling drugs across the United States-Mexico border. The following year Franco-Lopez engaged in numerous discussions with his co-defendant Martiniano Pena-Pena ("Pena-Pena") and a confidential informant ("informant") about smuggling narcotics into the United States. Franco-Lopez offered to introduce the informant to drug smugglers operating out of Tijuana, Mexico, gave the informant reason to believe he had a supply of illegal narcotics in the United States, and presented himself as a key contact between the participants in a smuggling operation.

On August 21, 1999, Franco-Lopez and Pena-Pena provided the informant with $1,000 to pay a "corrupt inspector" who would allow the men to import a load of marijuana into the United States. Three days later, Franco-Lopez and the informant waited near the Otay Mesa, California, Port of Entry for a van that Franco-Lopez knew was to contain marijuana. After the van arrived, the informant drove it through the port of entry via the assertedly corrupt inspector's booth. The informant then met Franco-Lopez and Pena-Pena at a predesignated drop-off point, where the two co-defendants gave $20,000 to the informant.

Franco-Lopez was arrested in September 1999 for trafficking in narcotics across the United States-Mexico border. He entered into a plea agreement in which he admitted that on or before August 24, 1999, he knowingly possessed, or aided and abetted the possession of, marijuana with the intent to distribute.

Three sections of that plea agreement are at issue in this appeal. They are: (1) a promise to recommend a sentence below the mandatory minimum under the U.S.S.G. § 5C1.2 "safety valve" provision¹ "if the United States Probation Department finds the defendant meets the requirements of that section and if the United States Attorney finds that defendant has truthfully disclosed to the Government all information and evidence concerning the offense that were part of the defendant's course of conduct;" (2) a provision preserving to both parties the right to "recommend and argue for adjustments and departures not set forth" in the plea agreement; and (3) an agreement on the part of the government to "forego recommending inclusion of facts for relevant conduct purposes, any loads of marijuana that Defendant and his Co-Defendant facilitated the importation of subsequent to the August 24, 1999, 890—pound load ...." [sic].

After securing this plea agreement, the government provided information, including information detailing offenses subsequent to the August 24 offense, to the probation officer responsible for preparing the Presentence Report (PSR). The government also represented to the probation officer that "the defendant was an organizer of marijuana smuggling ventures" and recommended that Franco-Lopez was eligible for an aggravated role adjustment under U.S.S.G. § 3B1.1, a position inconsistent with eligibility for the safety valve. See U.S.S.G. § 5C1.2 (4).

The PSR, using the information provided by the government, recommended a base offense level of 32, reflecting marijuana smuggled not only on or before August 24, 1999 but also on three subsequent occasions in September. See U.S.S.G. § 1B1.3(a)(2). Additionally, the PSR, relying on the government's characterization of the defendant as "an organizer of marijuana smuggling ventures," recommended against application of the safety valve.

Following the filing of the PSR, the government filed its own motion for role enhancement and argued for a role enhancement at the sentencing hearing. When asked at the hearing whether it had done so because of the probation office's recommendation, the government said that was not the case. Instead, the government represented that, "[f]rom the get-go, role was going to be an issue. So we agreed to leave that wide open .... Unfortunately, that's not in writing in some formal letter .... but the role enhancement was contemplated from the start...." The government did not, however, recommend the 32-level base offense urged by the PSR but instead, as promised, argued for a base offense level reflecting only the August 24 offense.

At the sentencing hearing, Franco-Lopez claimed that the government had breached the plea agreement both by providing information to the probation department on the smuggling transactions after August 24 and by maintaining that Franco-Lopez was an organizer of the August 24 smuggling transaction and therefore not entitled to the safety valve. The district court found that there had been no breach of the agreement and went on to deny Franco-Lopez the safety valve departure on two grounds: first, that Franco-Lopez was an organizer in the offense; and second, that Franco Lopez had failed to truthfully disclose the information required by U.S.S.G. § 5C1.2.

As to the safety valve, the district court held that the plea agreement was not breached because the agreement permitted the government to seek a role adjustment, even though an aggravated role adjustment would necessarily be inconsistent with the safety valve. While holding that the government "acted in good faith and properly," the district court expressed significant qualms, noting at the hearing:

I would have been much more comfortable with this result if the probation office's evaluation of the safety valve qualification as an organizer had been made initially which triggered the government's position that since it was left in the plea agreement to the auspices of the probation office as to whether or not there was a qualification .... To that extent it was never a good crack of the defendant at the safety valve consideration.

In its written opinion, the district court again held that "[t]he organizer adjustment falls squarely in the rights reserved provision [and] .... [t]he government did not promise to remain silent on defendant's compliance with the safety valve factors." Once more, the court expressed its "concern[]" that the government's safety valve promise was illusory in that from the outset the government possessed the factual basis to determine that defendant was an organizer in the August 1999 load and therefore ineligible for the "safety valve," but noted that the "lack of candor at the debriefing ... is an independent basis."

As to the disclosure prong, the government stated generally that in his debriefing Franco-Lopez had minimized his role but did not point to any particular untruthful statement. Defense counsel objected that

with respect to the truthfulness value — that is the defense's burden to prove, except my hands have been tied since the beginning, because I have not been able to check on the accuracy ... [The government], aside from saying he minimized his role, has not [identified] what lies he told so I can refute that.

The district court concluded that the "[d]efendant failed to satisfy that condition." The court made no specific findings regarding any respect in which Franco-Lopez was not truthful, stating that he did not want to "open a Pandora's box" or have a "full-blown trial" with regard to "w[h]ether the defendant is truthful in this debriefing."² Franco-Lopez was sentenced to the mandatory minimum term applicable absent the applicability of the safety valve — sixty months in prison and five years of supervised release. He now appeals, contending that the plea agreement was breached and should be specifically enforced.

DISCUSSION

As we have previously recognized, our standard of review for a district court's determination concerning an alleged breach of a plea agreement has been "inconsistent." United States v. Johnson, 187 F.3d 1129, 1134 (9th Cir.1999); compare United States v. Schuman, 127 F.3d 815, 817 (9th Cir.1997) (de novo standard of review) with United States v. Salemo, 81 F.3d 1453, 1460 (9th Cir.1996) (review of the district court's interpretation of the terms of the plea agreement is de novo, while the consideration of "whether the facts demonstrate that there was a breach of a plea agreement" is reviewed under the "more deferential clearly erroneous standard of review"). We need not resolve the inconsistency in this case. Whichever standard we apply, we reach the same conclusion: The government breached the plea agreement by rendering its promise to support a safety valve departure, conditioned on the PSR's recommendation, illusory, but did not otherwise breach the agreement.

Plea agreements are contractual by nature and are measured by contract law standards. United States v. Trapp, 257 F.3d 1053, 1056 (9th Cir.2001). The courts enforce the literal terms of the plea agreement, Johnson, 187 F.3d at...