U.S. v. Hernandez, 92-7485

• Decision Date: 07 March 1994
• Docket Number: No. 92-7485,92-7485
• Citation: 17 F.3d 78
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Joe HERNANDEZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 78

17 F.3d 78

UNITED STATES of America, Plaintiff-Appellee, v. Joe HERNANDEZ, Defendant-Appellant.

No. 92-7485.

United States Court of Appeals Fifth Circuit.

March 7, 1994.

Joseph Ronald Barroso, Corpus Christi, TX (Court-appointed), for defendant-appellant.

James L. Turner, Paula C. Offenhauser, Asst. U.S. Attys., Ronald G. Woods, U.S. Atty., Houston, TX, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before SMITH, DUHE, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

The Court withdraws the opinion issued in this case dated July 7, 1993, and substitutes the following:

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. Sec. 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. Sec. 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 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. Sec. 922(g)(1). As a result of his three prior felony convictions, Hernandez was subject to a statutory minimum sentence under Sec. 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 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.

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 Sec. 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. Sec. 5K1.1 or 18 U.S.C. Sec. 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 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 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.

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-a-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

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