July 22, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 95-1130
UNITED STATES OF AMERICA,
Appellee,
v.
JUAN VELEZ-HERNANDEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jos Antonio Fust , U.S. District Judge]
Before
Torruella, Chief Judge,
Coffin, Senior Circuit Judge,
and Cyr, Circuit Judge.
Francisco Serrano Walker on brief for appellant.
Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa,
Senior Litigation Counsel, and Juan A. Pedrosa, Assistant United
States Attorney, on brief for appellee.
Per Curiam. Defendant Juan Velez-Hernandez appeals the
Per Curiam.
sentence imposed following his guilty plea to one count of
conspiracy to possess with intent to distribute cocaine under 21
U.S.C. 841(a)(1), 846. Velez claims that the district court
erroneously ruled that the government did not breach the plea
agreement by failing to recommend a downward departure for
"substantial assistance." See 18 U.S.C. 3553(e); U.S.S.G.
5K1.1. We affirm.
Under his plea agreement, Velez promised to continue
truthfully to disclose to the government accurate information
related to all unlawful activities in which he and his
collaborators were involved, and to refrain from "commit[ting]
any offense." The government in turn promised to recommend a
downward departure for "substantial assistance" pursuant to 18
U.S.C. 3553 and U.S.S.G. 5K1.1.
Several months after entering into the plea agreement,
Velez was arrested on a new charge, as a felon in possession of a
loaded firearm, see 18 U.S.C. 922(g)(1), to which he pled
guilty. Thereafter, Velez provided further information to the
government about the earlier cocaine conspiracy, which he had not
disclosed as required by the plea agreement. At sentencing, the
government declined to move for a "substantial assistance"
departure, citing Velez' deliberate withholding of the
information relating to the cocaine conspiracy, in direct
violation of the plea agreement. The district court rejected
Velez' claim that he had forgotten the omitted information.
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Additionally, the district court determined that Velez'
commission of a subsequent offense violated the plea agreement as
well. Accordingly, the court ruled that the government had acted
in good faith and that Velez' conduct relieved the government of
any obligation to recommend a 5K1.1 downward departure.
We need not discuss the Velez challenge to the district
court's ruling insofar as it depended on the failure to disclose
all information relating to his unlawful activities involving his
collaborators, since Velez' failure to refrain from "commit[ting]
any offense" inarguably constituted a material breach of the plea
agreement sufficient to warrant the government's refusal to
recommend a downward departure for substantial assistance.
Affirmed.
Affirmed.
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