UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 96-1857
UNITED STATES OF AMERICA,
Plaintiff, Appellee,
v.
AWILDA GARCIA-VELILLA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Perez-Gimenez, U.S. District Judge]
Before
Boudin, Circuit Judge,
John R. Gibson,* Senior Circuit Judge,
and Pollak,** Senior District Judge.
Evelyn Quinones Carrasquillo for appellant.
Jose
A.
Quiles-Espinosa, Senior Litigation Counsel, with whom
Guillermo
Gil, United
States
Attorney, Nelson
Perez-Sosa, Assistant
United States Attorney, and Warren
Vazquez, Assistant United States
Attorney, were on brief for the appellee.
August 5, 1997
*Of the Eighth Circuit, sitting by designation.
**Of the Eastern District of Pennsylvania, sitting by designation.
Per
Curiam. The defendant-appellant, Awilda Garcia-
Velilla, pled guilty to one count of conspiracy to possess and
distribute cocaine in violation of 21 U.S.C. SS 841(a)(1), 846.
In the plea agreement, the government agreed to dismiss 12
other counts and to recommend a downward departure "if the
[defendant's] cooperation is deemed substantial." 18 U.S.C. S
3553(e); U.S.S.G. S 5K1.1. The agreement purported to reserve
to the prosecutor the exclusive right to decide whether
substantial assistance had been provided.
Garcia-Velilla in turn agreed "to provide all information
known to the defendant regarding any criminal activity
including but not limited to the offenses described in the
pending indictment." The plea agreement further warned that if
the defendant failed in any way to fulfill completely her
obligations under the agreement, the government would be freed
from all obligations under the agreement. As an example of a
breach, the agreement referred to a defendant who "knowingly
withholds evidence, or otherwise is not completely truthful
with the United States . . . ."
Garcia-Velilla did provide considerable information to the
government but also, during her release on bail, twice tested
positive for continued use of cocaine. The government took the
position that this impaired her usefulness as a witness and
said that it would not move for a downward departure. In
addition, Garcia-Velilla declined to tell the government who
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had supplied her with cocaine. The government asserted that
this was a further reason for its refusal to make a downward
departure motion.
In connection with sentencing, the government persisted in
its refusal and, despite a request by Garcia-Velilla, the
district court declined to compel the government to make such
a motion. It sentenced Garcia-Velilla to 70 months'
imprisonment, a sentence determined without the benefit of a
downward departure for substantial assistance. The 70-month
sentence was itself below the statutory minimum because Garcia-
Velilla satisfied the requirements of 18 U.S.C. S 3553(f); but
a downward departure for substantial assistance would have
permitted a sentence below the guideline range as well.
U.S.S.G. S 5K1.1. Garcia Velilla now appeals claiming that the
government breached its plea agreement by failing to move for
the latter departure. We affirm.
The government is obliged to respect the terms of the plea
agreement, United States v. Tilley, 964 F.2d 66, 70 (1st Cir.
1992), including a conditional promise to recommend a downward
departure. Whether this agreement could be regarded as
establishing such a promise is open to dispute since (as noted)
the agreement also purported to reserve this decision
exclusively to the prosecutor. Also open to dispute is the
standard that would apply if the court did assess the
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government's refusal. See generally United States v. Rexach,
896 F.2d 710 (2d Cir.), cert. denied, 498 U.S. 969 (1990).
We need not definitively resolve these questions, because
Garcia-Velilla admits that she refused to provide the names of
those who supplied her with cocaine while she was on bail.
This is a self-evident violation of an explicit requirement of
the plea agreement that she "provide all information known to
[her] regarding any criminal activity." The government in turn
was released from its obligations under the plea agreement,
including any obligation to consider a downward departure
motion.
Garcia-Velilla says that the government got the benefit of
considerable cooperation and has given nothing in return; and
she argues that her refusal to supply names of the persons who
supplied the cocaine should not be regarded as a sufficiently
important breach to excuse compliance by the government. To
the first point the answer is that Garcia-Velilla knew from the
agreement that she had to provide all information about
criminal activity in order to receive any benefit of the
agreement. As to the claim that her breach was too minor to
count, the identity of suppliers of cocaine can hardly be
regarded as trivial or unimportant, especially where the plea
agreement itself made clear that all information had to be
supplied.
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It thus becomes unnecessary to consider whether the
government could have declined to file a section 5K1.1 motion
for the limited reason that the defendant had, while on release
on bail, tested positively for cocaine and therefore apparently
had been in unlawful possession of that substance. Apparently
the plea agreement did not explicitly warn Garcia-Velilla that
she was obliged to refrain from any further criminal activity,
nor did it say that further criminal activity would be regarded
as failure to provide substantial assistance. Since this is a
recurring problem, it is unclear why the government fails to
provide such a warning, which would serve the interests of both
the defendant and the government.
In all events, the various questions posed by the lack of
warning need not be resolved in this case. Here, the defendant
did breach the plea agreement by refusing to provide
information plainly required by the agreement. That is basis
enough to affirm the district court. Solely because it may be
useful to alert prosecutors and defense counsel to the lack of
warning issue, this opinion will be published.
Affirmed.
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