UNITED STATES, Appellee, v. FRANCISCO JOSE BERMUDEZ, Defendant, Appellant.
No. 04-1222
United States Court of Appeals For the First Circuit
May 23, 2005
Hon. William E. Smith, U.S. District Judge
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND. Before Torruella, Circuit Judge, Campbell, Senior Circuit Judge, and Lynch, Circuit Judge.
Donald C. Lockhart, Assistant United States Attorney, with whom Robert Clark Corrente, United States Attorney, and Kenneth P. Madden, Assistant United States Attorney, were on brief, for appellee.
Bermudez appeals from his sentence. He contends that the district court erred in not ordering specific performance of the government‘s agreement to file a substantial assistance motion and in denying him a safety valve reduction, either of which, if applied, would have allowed a sentence lower than the mandatory minimum sentence. See
I. Background
On February 9, 2003, Bermudez and Gonzola Velasquez drove from New York to Rhode Island, carrying with them cocaine for delivery at the home of one Shawn Montegio. Tipped off to the impending delivery by intercepted cell phone conversations, federal agents went to Montegio‘s house and there arrested Bermudez, Velasquez, and Montegio in the course of their illegal transaction.
On February 12, 2003, a federal grand jury returned a four-count indictment charging: (1) Bermudez, Montegio, and Velasquez with conspiring to distribute over five kilograms of cocaine, in violation of
On July 3, 2003, Bermudez signed a plea agreement in which he agreed to plead guilty to the two counts naming him and agreed that the total weight of the cocaine was 8954.06 grams. Thе government agreed to recommend the lowest Guideline sentence or the ten-year mandatory minimum sentence, whichever was greater. The
On July 22, 2003, the district court, after a hearing, accepted Bermudez‘s guilty plea. Bermudez specifically acknowledged the 8954.06 gram figure as to drug weight. At the change of plea hearing, the prosecutor described the elements of the safety valve test, including the fifth element, which he explained requires that “not later than the time of the sentencing hearing, the defendant truthfully provides to the Government all information and evidence that the defendant has concerning the offense or offenses that were part of the same course of conduct.” See
On August 8 and 11, 2003, Bermudez met with the government for two safety valve debriefings. Prior to the second meeting, the parties entered into a new two-page agreement supplementing the original plea agreement. In this supplemental agreement, Bermudez agreed to be debriefed by federal agents and to testify at any trial. In exchange, the government agreed that, “[i]f Defendant is called as a witness and if Defendant‘s testimony is truthful, accurate and complete, the Government will move for a downward departure pursuant to
The trial of co-defendant Velasquez began on August 13, 2003. Called as a government witness, Bermudez testified on August 13 and 14. After speaking with the prosecutor and FBI case agent during a lunch break, Bermudez revised his initial direct examination testimony about the details of his first visit to Montegio‘s home in the summer of 2002, conceding that his initial testimony had been different. Thereafter, upon cross examination, Bermudez conceded that he had lied in his earlier testimony, and he furnished details about the charged February 9 drug transaction never previously disclosed to the government. Bermudez admitted then that the information he had given to the government in his debriefings had not been complete. The jury acquitted Velasquez on all counts.
At Bermudez‘s sentencing hearing, the district court found that Bermudez had given false testimony at the Velasquez trial. Bаsed on that finding, the district court concluded that, under the terms of the supplemental plea agreement, the government was not obligated to file a substantial assistance motion. After reviewing the contradictions and inconsistencies between Bermudez‘s trial testimony and the earlier disclosures he made to the
II. Discussion
A. Substantial Assistance
Bermudez argues that the district court erred in not ordering specific performance of the government‘s agreement to file a substantial assistance motion.
While we have held that this court ordinarily lacks jurisdiction to review on appeal a district court‘s refusal to depart downward, United States v. Atwood, 963 F.2d 476, 478 (1st Cir. 1992), we may review whether the government‘s failure to file a substantial assistance motion violated the plea agreement. See, e.g., United States v. Gonzalez-Perdomo, 980 F.2d 13, 15 (1st Cir. 1992); Atwood, 963 F.2d at 478 (collecting cases). The latter
Plea agreements are interpreted under principles of contrаct law. Id. at 12; Atwood, 963 F.2d at 479. “If the defendant lives up to his end of the bargain, the government is bound to its promises. On the other hand, if the defendant fails to fulfill his promises, the government is released from its agreement . . . .” United States v. Gonzalez-Sanchez, 825 F.2d 572, 578 (1st Cir. 1987).
Here, the supplemental plea agreement provides that “if [Bermudez‘s] testimony or his debriefing by federal agents is not truthful, or accurate, or complete, his plea of guilty shall stand, [and] the Government will not be obligated to adhere to the terms of the plea agreement.” Bеrmudez argues that he provided substantial assistance to the government, including meeting with federal agents twice and testifying as the key witness against Velasquez over the course of two days of trial. Bermudez concedes that he “backtracked on a few areas and subsequently revised his testimony,” but contends that “on balance a fair reading of all his testimony is that he gave a truthful account.”
The district court found that Bermudez gave false and inconsistent testimony at the Velasquez trial. The court expressly fоund that Bermudez had stated in his debriefings with the government in connection with his first visit to Montegio‘s home
Beyond other instances of false testimony, the court found “this [instance] alone [] enough to relieve the Government of any obligation it had to move for a downward departure under the terms of the plea agreement.” Concluding that a single episode is enough is not without precedent. See, e.g., United States v. Cruz-Mercado, 360 F.3d 30, 34 (1st Cir. 2004) (government‘s decision not to file a substantial assistance motion was within its discretion where the defendant failed “in one instance” to meet his obligation under the plea agreement to be truthful and stipulated to an upward adjustment for obstruction of justice); Gonzalez-Sanchez, 825 F.2d at 578-79 (trial court‘s determination that
But even assuming arguendo that more was needed, the district court also pointed to the fact that Bermudez admitted on cross examination that the information he had given the government in his debriefings about the charged February 9 drug transaction had been incomplete. This admission followed his disclosure during cross examination of additional details of the transaction not revealed during his debriefings or on direct examination.
As the district court‘s ultimate finding that Bermudez‘s trial testimony and debriefing statements had not been “truthful, or accurate, or complete,” as required by the plea agreement, was amply supported, we are satisfied that the district court properly refused to order specific performance of the government‘s agreement to file a substantial assistance motion.
B. Safety Valve
Bermudez argues that the district erred in finding that he was ineligible for the safety valve rеduction pursuant to
[T]he court shall impose a sentence in accordance with the applicable guidelines without regard to any statutory minimum sentence, if the court finds that the defendant meets the criteria in
18 U.S.C. § 3553(f)(1) -(5) set forth verbatim below:(1) the defendant does not have more than 1 criminal history point . . . ;
(2) the defendant did not use violence or credible threats of violence or possess a firearm or оther dangerous weapon (or induce another participant to do so) in connection with the offense;
(3) the offense did not result in death or serious bodily injury to any person;
(4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense . . . and was not engaged in a continuing criminal enterprise . . . ; and
(5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan, but the fact that the defendant has no relevant or useful other information to provide or that the Government is already aware of the information shall not preclude a determination by the court that the defendant has complied with this requirement.
As the parties agree, only the fifth element of the safety valve provision is in dispute. The issue is whether the district cоurt clearly erred in finding that Bermudez had not satisfied the requirement that “not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the
Our review of the court‘s adverse factual finding on the safety valve issue is for clear error. United States v. Marquez, 280 F.3d 19, 22 (1st Cir. 2002). Review under the clear error standard is “extremely deferential.” Id. at 26. Under that standard, “an appellate court ought not to disturb either findings of fact or conclusions drawn therefrom unless the whole of the record compels a strong, unyielding belief that a mistake has been made.” United States v. Matos, 328 F.3d 34, 40 (1st Cir. 2003).
A defendant who wishes to take advantage of the safety valve bears the burden of showing that he has made truthful, complete, and timely disclosures to the government. Id. at 39. We have made it clear that “nothing short of truthful and complete disclosure will suffice.” Id. at 38; see Marquez, 280 F.3d at 24; United States v. Montanez, 82 F.3d 520, 523 (1st Cir. 1996).
In the instant case, the district court carefully considered Bermudez‘s inconsistent testimony at the Velasquez trial, compared it to his debriefing statements, and based the denial of the safety valve reduction on specific factual findings. The court recounted in detail, citing the relevant pages of the Velasquez trial transcript and the debriefing summary memorandum, the instances in which Bermudez‘s debriefing statements were incomplete and/or inconsistent with his trial testimony.
Relative to the charged February 9 drug transaction itself, Bermudez testified on cross examination to information he had failed to disclose during the debriefings or on direct examination. Bermudez had told the government during the debriefings that he was at Velasquez‘s home on the afternoon of February 9 when two Columbian males arrived with the cocainе. He said he stayed in the living room while the two Columbians entered the bedroom with Velasquez. After the Columbians left, Bermudez said he went into the bedroom where Velasquez showed him the cocaine.
In his testimony on direct examination at the Velasquez trial, however, Bermudez added that he could not see into the bedroom because the door was closed and, therefore, did not know what the three men were doing in the bedroom. On cross examination, Bermudez added more new information -- that there wеre women and children in the drug suppliers’ vehicle; that one of the men was Columbian and one was Mexican, a determination he made from hearing them speak; that he knew one of the men, contrary to his prior statements otherwise; and that he had been called into the
The district court found that a February 8 phone conversation between Bermudez and Montegio indicated the falsity and incompleteness of Bermudez‘s disclosures to the government. At the Velasquez trial, Bermudez testified that Velasquez was sitting right next to him during the phone call and told him that a price of $22,000 per kilogram of cocaine was okay with him. The district court listened to the taped cоnversation multiple times and found “no indication whatsoever . . . that anyone is sitting next to or being spoken to by Bermudez.” The court concluded that Bermudez was the one negotiating the price with Montegio. The court also found that the recording belied Bermudez‘s trial testimony that he had not yet seen the cocaine at the time of the phone call, because Bermudez described the cocaine to Montegio in a way that implied that he had already seen it.
Finally, the district court noted Bеrmudez‘s inconsistent disclosures as to the amount of money he was to receive from the charged February 9 drug transaction. In his first debriefing, Bermudez stated that he expected to receive $4,000 to $5,000 from Velasquez. In his second debriefing, he changed that amount to
The district judge concluded that “all of these areas of discrepancy and changing of stories, of gaps, of missing information, of new information occurring to him” were “too much to be attributed to either coincidence or nervousness or any other excuse.” Even more significantly, the court went on to state, “I, frankly, at the end of all of this, I don‘t know what happened in this transaction. I‘m not sure which aspects of these various stories to believe.” Accordingly, the district court concluded that Bermudez had failed to prove, as it was his burden to do, that his proffers to the government had been truthful and complete.
Bermudez concedes that he made misstatements аt the Velasquez trial and added information he had not previously disclosed to the government. He contends, however, that he is entitled to the safety valve because he gave a truthful and complete account to the government by the close of his testimony and before the commencement of the sentencing hearing. Bermudez points out that the safety valve statute,
Bermudez also contends that his contradictions and omissions related merely to tangential matters, hence should not disqualify him from the safety valve. We do not accept his “tangential” characterization. The safety valve provision states that the required disclosure must concern “the offense or offenses that were part of the same course of conduct or of a common scheme
In light of Bermudez‘s misstatements at the Velasquez trial as well as the inconsistencies between his trial testimony and debriefing statements, the district court did not clearly err in determining that Bermudez failed to provide truthful and complete information to the government such as warranted safety valve relief.
In his original brief, Bermudez argued for the first time on appeal that his case should be remanded for resentencing under Blakely v. Washington, 124 S. Ct. 2531 (2004), because the factual determinations regarding substantial assistance and safety valve relief, either of which would have allowеd a sentence lower than the mandatory minimum, were not submitted to a jury. After United States v. Booker, 125 S. Ct. 738 (2005) was decided, this Court invited both parties to submit supplemental briefing on the impact of that case. Because Bermudez did not argue in the district court error under Apprendi v. New Jersey, 530 U.S. 466 (2000), Blakely, or that the Guidelines were unconstitutional, plain error analysis applies. United States v. Antonakopoulos, 399 F.3d 68, 76 (1st Cir. 2005).
Bermudez‘s primary argument is a Blakely type argument -- that resentencing is required because the district court, and not a jury, made the following findings to “enhance” his sentеnce in violation of the Sixth Amendment: (1) that the United States had not breached its agreement to file a substantial assistance motion and (2) that he did not qualify for the safety valve reduction. But a factual finding resulting in the denial of a sentencing reduction, as in the present case, is scarcely an “enhancement.” See Booker, 125 S. Ct. at 756 (holding that “the Sixth Amendment is violated by the imposition of an enhanced sentence under the United
In any event, we rejected the premise of this argument in Antonakopoulos. There, we held that “[t]he error [under Booker] is not that a judge (by a prepondеrance of the evidence) determined facts under the Guidelines which increased a sentence beyond that
Had the district court erred in the findings on which the substantial assistance and safety valve decisions were based, that error would, of course, provide a basis for remand. Id. at 82. As we have explained, however, no such error occurred. See supra Parts II.A & B.
In supplemental briefing Bermudez contends that his sentence should be vacated and remanded under Booker, arguing that he was erroneously sentenced under a mandatory Guidelines system, and that, in effect, there is a reasonable probability that the district court would have given him a lower sentence under advisory Guidelines. Antonakopoulos, 399 F.3d at 83.
However, as is clear from Antonakopoulos, Bermudez fails to satisfy even the first prong of the plain error test. Contrary to his assertion, Bermudez was not erroneously sentenced under a mandatory Guidelines system. Rather, he was sentenced to a statutory mandatоry minimum based on an amount of drugs, 8954.06 grams, to which he admitted being involved with in his plea agreement. See
III. Conclusion
For the foregoing reasons, the sentence is affirmed.