United States v. Hernandez

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________________

No. 92-7485
_____________________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JOE HERNANDEZ,

Defendant-Appellant.
_________________________________________________

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

(March 7, 1994)

Before SMITH, DUHÉ, and WIENER, Circuit Judges.

WIENER, Circuit Judge:

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.

§ 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. § 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. § 922(g)(1). As a result of his three prior felony

convictions, Hernandez was subject to a statutory minimum sentence

under § 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

2
 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.

1
(Emphasis added).

3
 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 § 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. § 5K1.1

or 18 U.S.C. § 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

2
United States v. Watson, 988 F.2d 544, 548 (5th Cir. 1993)
(citing United States v. Valencia, 985 F.2d 758, 760 (5th Cir.
1993)).
3
Id. (citing United States v. Conner, 930 F.2d 1973, 1076
(4th Cir.), cert. denied, 112 S.Ct. 420 (1991), and United States
v. Hurtado, 846 F.2d 995, 997 (5th Cir.), cert. denied, 488 U.S.
863 (1988)).

4
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

4
Id. (quoting Valencia, 985 U.S. at 761).

5
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.

6
 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-à-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

investigators))verification that was clearly necessary but was

never performed.

2. The Use of "May" in the Plea Agreement

The government's oral explanation of the plea agreement was to

the effect that if Hernandez provides substantial assistance, "the

5
United States v. Melton, 930 F.2d 1096, 1098-99 (5th Cir.
1991); see Watson, 988 F.2d at 552-53 (discussing Melton's
continued vitality after the Supreme Court's decision in Wade v.
United States, ___ U.S. ___, 112 S. Ct. 1840 (1992), when the
government's discretion to make a § 5K1.1 motion is limited by a
plea agreement).

7
government may make a motion for downward departure at

sentencing."6 The record sheds no light on the degree of

discretion, if any, the parties intended for the government to

retain by the use of the permissive word "may" (as opposed to the

mandatory "will" or "shall").

In Wade v. United States,7 the Supreme Court held that a trial

court could not depart downwardly under § 5K1.1 in the absence of

a government motion to that effect. The Court also held that

§ 5K1.1 and its statutory counterpart, 18 U.S.C. § 3553(e), gives

the government "a power, not a duty" to file such a motion.8 We

have held, however, that the discretion to make a § 5K1.1 motion,

which was discussed in Wade, can be bargained away by the

government in a plea agreement.9 Given the admirably candid

concessions it made to this court in oral argument of the instant

appeal, the government on remand cannot hereafter insist that

Hernandez knowingly and intentionally walked into such an illusory

"bargain."10

3. Departures Below the Mandatory Minimum

At oral argument, the parties discussed the general question,

does the district court's authority to depart below a mandatory

6
(Emphasis added).
7
112 S. Ct. 1840 (1992).
8
Id. at 1843.
9
See Watson, 988 F.2d at 552-53.
10
But cf. United States v. Watson, 988 F.2d 544, 552 n.3.;
see also id. at 553.

8
minimum depend upon whether the government's downward departure

motion is made under § 5K1.1 or under 18 U.S.C. § 3553(e)? The

agreement in the instant case does not specify under which

provision the motion might be made in the event that Hernandez

should provide substantial assistance. As the agreement was thus

silent on this issue, the government's potential obligation to move

for a downward departure is even more questionable.

After reviewing the supplemental briefs submitted to us, and

conducting independent research on the matter, we join the majority

of circuits which hold that the district court may depart below a

mandatory minimum irrespective of whether the departure motion is

made under either § 5K1.1 or § 3553(e).11 As our colleagues on the

Fourth Circuit have stated: "Section 5K1.1 governs all departures

from guideline sentencing for substantial assistance, and its scope

includes departures from mandatory minimum sentences permitted by
12
18 U.S.C. § 3553(e)."

11
See United States v. Cheng Ah-Kai, 951 F.2d 490, 492-93
(2d Cir. 1991); United States v. Wade, 936 F.2d 169, 171 (4th
Cir. 1991); United States v. Keene, 933 F.2d 711, 714 (9th Cir.
1991); see also U.S.S.G. § 5K1.1 application note 1 ("Under
circumstances set forth in 18 U.S.C. § 3553(e) and 28 U.S.C. §
994(n), as amended, substantial assistance in the investigation
or prosecution of another person who has committed an offense may
justify a sentence below a statutorily required minimum
sentence."(emphasis added)). But see United States v. Hawley,
984 F.2d 252, 253-54 (8th Cir. 1993)(holding that a "sentencing
court can depart below the statutory mandatory minimum sentence
only if the government files a motion for such a departure
pursuant to 18 U.S.C. § 3553(e)" and not merely U.S.S.G. §
5K1.1); United States v. Rodriguez-Morales, 958 F.2d 1441, 1444-
45 (8th Cir.), cert. denied, __ U.S. __, 113 S.Ct. 375 (1992).
12
Wade, 936 F.2d at 171.
In its initial brief to this court, the government also
argued that Hernandez had waived any error by declining the

9
 III

CONCLUSION

A substantial question remains unanswered concerning the

intentions of the parties as to the nature, quality, and quantity

of the information Hernandez was expected to provide in order to

constitute "substantial assistance" under the subject plea

agreement. Only after it first determines what the parties meant

by using that term can the district court properly decide whether

the government breached the plea agreement by refusing to move for

a downward departure. The court must also determine the intentions

of the parties concerning the use of the word "may" in the

agreement))even though we have serious doubts that either party

meant for the government to retain unbridled discretion merely by

using that word. Finally, we note that if the district court

should be inclined to depart below the mandatory minimum sentence

following a motion by the government to depart downward under

either U.S.S.G. § 5K1.1 or 18 U.S.C. § 3553(e), the court is not

prohibited from so doing.

For the foregoing reasons, we VACATE Hernandez's sentence and

district court's offer to withdraw his guilty plea. We recognize
that when the court made the offer to Hernandez, it was giving
him little more than a Hobson's choice))if he withdrew his plea
at that point, he would realize no benefit as the government had
already received all the benefit from his waiver of rights, i.e.,
he had given substantial prejudicial evidence that could be used
against him. In asserting during oral argument and in subsequent
briefing to this court that this case should be remanded for
additional factfinding and resentencing, however, we understand
the government to have abandoned its claim that Hernandez waived
any potential error by refusing the court's offer to withdraw his
plea.

10
REMAND this case for additional determinations))and eventual

resentencing))consistent with this opinion.

11