United States Court of Appeals
For the First Circuit
No. 99-1298
UNITED STATES OF AMERICA,
Appellee,
v.
EDDY I. SANDOVAL,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
[Hon. Ronald R. Lagueux, U.S. District Judge]
Before
Selya, Boudin and Lynch,
Circuit Judges.
Robert Sugar, by appointment of the court, for appellant.
Donald C. Lockhart, Assistant United States Attorney, with
whom Margaret E. Curran, United States Attorney, and Stephanie
S. Browne, Assistant United States Attorney, were on brief, for
appellee.
February 25, 2000
SELYA, Circuit Judge. In United States v. Alegría, 192
F.3d 179, 187 (1st Cir. 1999), we held "that the government must
perform in good faith the discretionary obligations that it
affirmatively undertakes in a plea agreement." We then applied
that principle to a situation in which the government had
promised explicitly to consider moving for a downward departure
under USSG §5K1.1. See id. at 188. In the instant case,
defendant-appellant Eddy I. Sandoval invites us to extend the
holding of Alegría to a situation in which the plea agreement
makes no mention of such a possibility. We decline the
invitation. At the same time, we reject an unrelated assignment
of error. Accordingly, we affirm the sentence imposed by the
lower court.
I
After Providence police detectives arrested the
appellant for possession of crack cocaine, they searched his
home pursuant to a warrant and recovered additional cocaine, a
gun, ammunition, and drug paraphernalia. Not surprisingly, a
federal grand jury returned an indictment. In due course, the
appellant pled guilty to possession of cocaine with intent to
distribute, 21 U.S.C. §§ 841(a)(1), (b)(1)(B), and illegal
possession of a firearm, 18 U.S.C. § 922(g)(1).
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The plea agreement obligated Sandoval, in pertinent
part, to admit his guilt and to provide full and truthful
cooperation with regard to the underlying offenses. The
agreement obligated the government, in return, to recommend a
three-level decrease in the aggregate offense level for
acceptance of responsibility, see USSG §3E1.1(b); to abstain
from attempting to enhance Sandoval's sentence on account of a
prior state narcotics conviction, see 21 U.S.C. § 851; and —
unless a statutory mandatory minimum sentence interfered — to
urge the district court to sentence Sandoval at the low end of
the guideline sentencing range (GSR). The agreement contained
no mention either of "substantial assistance" or of a downward
departure.
At the disposition hearing, Sandoval did not claim that
the government had failed to comply with any of its express
undertakings. He did, however, object to the presentence
investigation report in two respects. First, he challenged the
statement that no basis existed for a downward departure. In
this regard, he claimed that he had furnished the government
with the names of eighteen persons involved in criminal
activity, and that supplying this information entitled him to a
downward departure (or, at least, to serious consideration of
that largesse). Second, he challenged, as factually wrong, the
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conclusion that his offense level should be increased because he
had possessed a firearm in connection with the commission of a
drug offense.
The district court considered and rejected Sandoval's
importunings. It set a base offense level of 26, see USSG
§2D1.1(a)(3), added two levels for the gun, see id.
§2D1.1(b)(1), and subtracted three levels for acceptance of
responsibility, see id. §3E1.1(b). The combination of these
determinations and the appellant's criminal history category (V)
yielded a GSR of 100-125 months. See id. Ch.5, Pt.A (sentencing
table). The court rejected Sandoval's request for a downward
departure, pointing both to the absence of a government motion
and to the lack of any showing that the appellant's furnishing
of a list of names had been useful. The court then accepted the
prosecutor's recommendation and imposed an incarcerative
sentence of 100 months.
II
The appellant's principal argument is that he was
entitled to a downward departure for what he characterizes as
his "substantial assistance" to the government. In his view,
the prosecutor acted improperly by refusing to move for one, and
the district court erred in not remedying the situation. This
argument lacks force.
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We made clear in Alegría, 192 F.3d at 189, that
departures for substantial assistance must come within the
confines of USSG §5K1.1. Drawing on Koon v. United States, 518
U.S. 81 (1996), the appellant attempts to subvert this holding
on the theory that USSG §5K2.0 provides a separate and
independent basis under which the district court can depart
downward for substantial assistance. This is an argument that
we confronted and rejected in Alegría, 192 F.3d at 189, and we
have no hesitancy in rejecting it here.
This brings us to section 5K1.1, which provides in
pertinent part that "[u]pon motion of the government stating
that the defendant has provided substantial assistance in the
investigation or prosecution of another person who has committed
an offense, the court may depart from the guidelines." The sine
qua non for a section 5K1.1 departure is the filing of a motion
to that effect by the government. See Alegría, 192 F.3d at 189;
United States v. Mariano, 983 F.2d 1150, 1155 (1st Cir. 1993).
For the most part, the government has unbridled discretion in
deciding whether to file such a motion. See Wade v. United
States, 504 U.S. 181, 185 (1992); United States v. Romolo, 937
F.2d 20, 25 (1st Cir. 1991); United States v. La Guardia, 902
F.2d 1010, 1015 (1st Cir. 1990). Thus far, we have identified
only two situations in which the law constrains this discretion.
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The first involves cases in which the government's failure to
move for a substantial assistance departure is based on some
constitutionally impermissible factor (say, race or religion),
or is "not rationally related to [some] legitimate Government
end." Wade, 504 U.S. at 185-86. The second involves cases in
which the government explicitly undertakes to make, or to
consider making, such a motion.1 See Alegría, 192 F.3d at 187.
The appellant entreats us to carve out a further
exception and to hold that the government's discretionary
decision not to move for a downward departure under section
5K1.1 is judicially reviewable in a case in which no
constitutional infirmity is alleged and in which the plea
agreement does not mention substantial assistance (or any form
of downward departure, for that matter).2 To grant this entreaty
would fashion an exception that would swallow the general rule.
The downside of such an approach is too easily
envisioned to warrant much discussion. In earlier opinions, we
recounted several potential hazards associated with overly
1Although Alegría involved a commitment undertaken in a plea
agreement, we leave open the possibility that an extrinsic
promise or assurance that survives both the execution of the
plea agreement and the taking of the defendant's plea may
suffice. See Alegría, 192 F.3d at 185.
2To be sure, the plea agreement here does mention
"cooperation" — but cooperation differs significantly from
substantial assistance. See Alegría, 192 F.3d at 183-84.
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zealous judicial review, see Alegría, 192 F.2d at 187-88 & n.6;
United States v. Doe, 170 F.3d 223, 225 (1st Cir. 1999), and
those same hazards certainly are present in the circumstances of
this case. The problem is exacerbated where, as here, a
defendant has entered into a plea agreement that grants him
certain determinable benefits but eschews any mention of a
substantial assistance departure. In such a situation, there is
every reason to presume that the benefits designated in the
agreement are intended as a full and fair exchange for the
defendant's performance of his side of the bargain. Cf. United
States v. Carozza, 4 F.3d 70, 89 (1st Cir. 1993) (refusing to
disturb a guilty plea when the defendant received the benefit of
those promises that were explicitly set forth in the plea
agreement).
To say more on this aspect of the case would be
supererogatory. We believe that, for purposes of section 5K1.1,
a plea agreement that contains no reference to substantial
assistance creates a situation that is tantamount to one in
which a defendant pleads guilty without any agreement at all.
Based on this equivalence, we hold that Wade controls this case.
This means that when a defendant has entered into a plea
agreement that contains no express provision for consideration
of a section 5K1.1 departure, the government's discretionary
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decision not to file a section 5K1.1 motion is, as in Wade,
reviewable only for an unconstitutional motive or the lack of a
rational relationship to any legitimate governmental objective.
In this case, there is no hint of either such condition, so we
cannot consider the propriety of the government's omission.
III
We need not tarry over the appellant's remaining claim
of error. The district court increased the appellant's
aggregate offense level (and, therefore, the applicable GSR)
because the authorities found a firearm in his possession under
circumstances that suggested a relationship between the firearm
and the appellant's criminal activities. See USSG §2D1.1(b)(1)
(providing for a two-level enhancement "[i]f a dangerous weapon
(including a firearm) was possessed"). The Sentencing
Commission has specifically instructed courts to apply this
enhancement "unless it is clearly improbable that the weapon was
connected with the offense." USSG §2D1.1(b)(1), comment. (n.3).
The defendant must carry the devoir of persuasion on this issue
and thus must convince the trier to credit his innocent
explanation. See United States v. Aker, 181 F.3d 167, 172 (1st
Cir. 1999).
In this instance, Sandoval explained to the sentencing
court that he had purchased the weapon for personal protection
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and not for any drug-related shenanigans. Judge Lagueux flatly
rejected this testimony, instead finding that the presence of
the weapon in the same bureau drawer as the cocaine stash
demonstrated a culpable connection between the two.
Absent a mistake of law (and we see none here), we
review the district court's factfinding at sentencing only for
clear error. See United States v. Ruiz, 905 F.2d 499, 507 (1st
Cir. 1990). This standard requires that we defer broadly to the
court's credibility determinations. See United States v.
McDonald, 121 F.3d 7, 9 (1st Cir. 1997); Ruiz, 905 F.2d at 507.
Under this framework, we have no principled choice but to uphold
the enhancement. After all, when a firearm's location indicates
a link between it and the possessor's drug business, the
evidence ordinarily will be deemed sufficient to support the
enhancement. See, e.g., United States v. Gonzalez-Vazquez, 34
F.3d 19, 24 (1st Cir. 1994); United States v. Jackson, 3 F.3d
506, 509 (1st Cir. 1993); United States v. Corcimiglia, 967 F.2d
724, 727 (1st Cir. 1992).
IV
We need go no further. Concluding, as we do, that the
district court sentenced the appellant in accordance with the
law, we reject Sandoval's appeal.
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Affirmed.
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