United States v. Garcia-Velilla

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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