United States v. Santana

July 22, 1996 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT No. 95-1229 UNITED STATES OF AMERICA, Appellee, v. ANGEL SANTANA, Defendant, Appellant.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. Thomas R. Lincoln, with whom Law Offices of Thomas R. Lincoln was on brief for appellant. Juan A. Pedrosa, Assistant United States Attorney, with whom Guillermo Gil, United States Attorney, Jos A. Quiles-Espinosa, Senior Litigation Counsel, and Nelson P rez-Sosa, Assistant United States Attorney, were on brief for appellee. Per Curiam. Angel Santana, one of twenty-three Per Curiam. defendants involved in an extensive drug trafficking operation, claims that the government failed to comply with their plea agreement by refusing to request a "substantial assistance" departure at sentencing. See 18 U.S.C. 3551 and U.S.S.G. 5K1.1. We find no error. Santana pled guilty to conspiracy to possess with intent to distribute in excess of 2,300 kilograms of cocaine. See 21 U.S.C. 841(a)(1), 846. The plea agreement required Santana to cooperate in the government's investigation of drug trafficking, drug-related murders, firearms trafficking, and other criminal violations, and to continue to provide complete, truthful and accurate information and testimony on an ongoing basis. In return, the government agreed to request a downward departure for "substantial assistance." Santana contended below that he complied with the plea agreement by providing information which the government used against his codefendants, and by testifying at the trial of a codefendant. Thus, he argued, the government acted in bad faith by refusing to request a downward departure. The government responded, and the district court agreed, that Santana breached the plea agreement by failing to disclose, inter alia, all his knowledge about the drug-related murders, thereby relieving the government of its contingent obligation. See United States v. Santiago-Gonzalez, 66 F.3d 3, 7 (1st Cir. 1995); United States v. Tilley, 964 F.2d 66, 70 (1st Cir. 1992); United States v. 2 Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir.), cert. denied, 484 U.S. 989 (1987). We review the district court's factual findings under the "clear error" standard, United States v. Clark, 55 F.3d 9, 11 (1st Cir. 1995), but conduct de novo review of its ultimate finding that the plea agreement was not breached by the government. See id. at 11; United States v. Atwood, 963 F.2d 476, 478 (1st Cir. 1992). There is ample record support for the district court ruling that the government reasonably regarded Santana's failure to disclose all he knew about drug-related murders, among other matters, as a material breach of their plea agreement. As Santana failed to fulfill a material condition precedent to the government's obligation to recommend a downward departure for substantial assistance, the government was under no obligation to do so. Affirmed. Affirmed. 3