REVISED OCTOBER 30, 2002

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 01-11467

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

FRANCISCO GONZALEZ, also known as Pancho,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of Texas October 14, 2002

Before DeMOSS, STEWART, and DENNIS Circuit Judges.

DeMOSS, Circuit Judge:

Francisco Gonzalez was charged by indictment with conspiracy

to distribute marijuana and possession with the intent to

distribute marijuana. Gonzalez pled guilty to the conspiracy

charge pursuant to a plea agreement and agreed to cooperate with

the Government. At the sentencing hearing, information provided by

Gonzalez when he was debriefed by the Government was disclosed to

the district court. Gonzalez appeals claiming that this information was used against him and therefore the Government

breached the plea agreement. We find that there was a breach of

the agreement.

BACKGROUND

The undisputed facts set forth in the plea agreement establish

that Francisco Gonzalez entered into a conspiracy with Victor

Mondragon and Raul Gutierrez to acquire marijuana in Mexico and

transport it for sale in the Dallas area. Gonzalez made

arrangements with Mondragon for the distribution of the marijuana

and drove with Gutierrez in a semi-tractor trailer carrying the

marijuana to a used truck lot in Dallas, where the marijuana was to

be unloaded and distributed to Mondragon. On April 3, 2001, as the

marijuana was being unloaded by the three men, police arrived and

Gonzalez and Gutierrez were arrested. Mondragon fled but later

surrendered to authorities.

Gonzalez was charged by indictment with conspiracy to

distribute over 100 kilograms of marijuana and possession with the

intent to distribute over 100 kilograms of marijuana. On July 2,

2001, Gonzalez pled guilty to the conspiracy charge pursuant to a

plea agreement and agreed to cooperate with the Government. In

turn, the Government agreed that “pursuant to U.S.S.G. § 1B1.8(a),

any statements made by [Gonzalez] in the course of his promised

cooperation [would] not be used against [him] when determining the

applicable guideline range, except as provided in U.S.S.G. §

2 1B1.8(b).”1 The plea agreement also contained a standard waiver of

appeal provision.

On August 13, 2001, a probation officer filed a pre-sentencing

report (“PSR”) which indicated Gonzalez’s sentence should be

enhanced because he had a leadership role in the offense. On

September 13, 2001, Gonzalez filed, under seal, objections to the

PSR claiming, among other things, that he was not a leader and

individuals who were following in a Suburban were the leaders. On

October 29, 2001, the probation officer filed an addendum to the

PSR. The addendum stated that Gonzalez did not serve in the same

leadership role as the original PSR indicated but nonetheless was

a leader and should still receive an enhancement for his role.

On October 26, 2001, Gonzalez participated in a debriefing

1 Section 1B1.8(b) reads as follows:

(b) The provisions of subsection (a) shall not be applied to restrict the use of information:

(1) known to the government prior to entering into the cooperation agreement;

(2) concerning the existence of prior convictions and sentences in determining §4A1.1 (Criminal History Category) and §4B1.1 (Career Offender);

(3) in a prosecution for perjury or giving a false statement;

(4) in the event there is a breach of the cooperation agreement by the defendant; or

(5) in determining whether, or to what extent, a downward departure from the guidelines is warranted pursuant to a government motion under §5K1.1 (Substantial Assistance to Authorities).

3 session, prior to which defense counsel received a proffer letter

from the Government containing the following condition: “No

statements that either you or Mr. Gonzalez make during these

discussions can be used as evidence against him in any civil or

criminal proceedings except the Government may use such statements

for the purpose of cross-examination, impeachment and rebuttal

should your client testify at any proceeding contrary to this

proffer.” At the debriefing, Gonzalez told the Government about a

Suburban carrying individuals that was traveling thirty minutes

behind and had authorities waited they could have apprehended these

individuals as well. Apparently, Gonzalez was the sole source of

this information.

On October 29, 2001, a sentencing hearing was held in the

Dallas Division of the United States District Court for the

Northern District of Texas. The only contested issue at the

hearing was whether Gonzalez’s sentence would be enhanced by two

levels, under U.S.S.G. § 3B1.1(c), because of a leadership role in

the offense. If that role enhancement were not applied Gonzalez

would be eligible for the safety valve.

At the sentencing hearing, the district court heard testimony

from the Government’s witness, DEA Agent Scott Modesitt, on the

issue of whether Gonzalez had a leadership role in the offense.

Agent Modesitt testified that he had been talking to a government

informant when Gonzalez called the informant. Gonzalez asked the

4 informant to pick him up in Laredo, Texas, and take him to Dallas

for the purpose of distributing the marijuana. Agent Modesitt sent

the informant to Laredo and instituted surveillance. According to

Agent Modesitt, his own surveillance and information provided by

the government informant, Mondragon, and Gutierrez indicated

Gonzalez’s role was to make sure everybody got their share of the

marijuana.

Throughout Agent Modesitt’s testimony, the court questioned

him in an effort to determine exactly what Gonzalez’s role in the

offense was. After Agent Modesitt completed his testimony, the

district court was not certain Gonzalez had a leadership role and

the court made the following statement:

That is the point I am trying to make, that I was trying to make with the DEA Agent. This whole deal is a moving target. First "Gonzalez] is good for the three people coming up. Oh, no, wait. That is not the case."2 Then it is Victor Mondragon, and they are doing this in the debriefing.3 And you know what, I wouldn’t buy a used car from either of them. And so if the DEA Agent knows something, that is golden. But if it is a bunch–- if everything is coming from a bunch of other criminals, I am not real big on taking that to the bank. And you, [the prosecutor], are in the same boat, just like the probation officer. This deal is kind of fluid and moving. And then Victor [Mondragon] doesn’t grace us with his presence this morning, so that really

2 This comment refers to the fact that the probation officer retracted her original statement in the PSR that Gonzalez was responsible for sending three people to recruit a truck driver in Laredo to transport the marijuana to Dallas. See PSR Addendum, p. 3. 3 This comment is based on the fact that some evidence from Victor Mondragon’s debriefing indicated Mondragon was the leader who directed the other participants in the offense.

5 kind of makes his credibility dip a bit.4

After an extensive exchange between the Government, defense

counsel and the court, the court asked, “Who brought the money to

the party? Who had the money?” Defense counsel for Gonzalez

replied that he did not believe there was any money at that point

in the offense and the marijuana was to be spilt between Mondragon

and the confidential source.

After a further exchange between defense counsel and the court

concerning granting Gonzalez’s objection to an enhancement for a

leadership role in the offense and his eligibility for the safety

valve, the court again asked who was going to pay for the

marijuana. Defense counsel replied with his understanding of the

situation and then the Government made the following statement:

Your Honor, if I may, during the debriefing on Friday, Mr. Gonzalez told us there was a Suburban carrying four individuals that would have arrived on the scene 30 minutes, had the agents waited another 30 minutes, and that they were supposed to get the majority of the marijuana, and that this confidential source and Mondragon were only suppose to get 200 to 300 pounds of it. That information was not provided by anyone else. No one knew or mentioned the Suburban with four individuals.

Defense counsel responded:

That is mostly true, except that the individuals in the Suburban were not supposed to get the portion of the marijuana; rather, they were supposed to supervise the distribution of their portion of the marijuana to Victor Mondragon. Mr. Gonzalez’s part was to make sure that

4 This comment refers to the fact that Victor Mondragon did not appear, as required, at the sentencing hearing possibly because he was feeling ill.

6 [the confidential informant] got the 200 to 300 pounds of marijuana that he was supposed to get.

In response to further questioning from the court, the

Government stated that the information regarding the Suburban came

only from Gonzalez–that neither the confidential source nor

Mondragon told the Government about the Suburban.

The district court then stated:

The deal is-- it is all going back and forth, and like I said before, when I am dealing with a bunch of criminals I am not real confident about doing things to people that affect their liberty based upon what another criminal would say without some bit of corroboration. But let me tell you, you want to talk admissions against interest, the ultimate admission against interest is the Suburban, because if that didn’t come from anywhere else, that shows that some type of planning or direction or some kind of involvement that gives credence to what everybody else was saying. I am going to resolve the matter against the defendant.

The district court then sentenced Gonzalez to 70 months’

imprisonment, five years’ supervised release, and a $100 special

assessment.

The following day and prior to entry of judgment, Gonzalez

filed, under seal, a motion for reconsideration, asking the court

to withhold entry of judgment and to reconsider the sentence based

on the assertion that the Government impermissibly used evidence

obtained from Gonzalez’s debriefing which violated the terms of the

plea and proffer agreements and which led the court to assign an

enhancement for Gonzalez’s role in the offense. The Government

objected to the motion, arguing that its revelation of the

7 information regarding the Suburban was sanctioned by the proffer

agreement because it was disclosed solely in rebuttal to defense

counsel’s misstatement as to how the marijuana was to be

distributed. Defense counsel argued that the transcript indicated

he had not made a misstatement but rather was attempting to explain

his understanding of the role of the individuals following in the

Suburban and the distribution of the marijuana. On November 5,

2001, the district court orally denied the motion for

reconsideration without making any findings. The court then

entered judgment against Gonzalez, imposing the original sentence.

Gonzalez filed a timely notice of appeal.

On appeal Gonzalez asserts that the Government breached the

plea agreement, and violated his due process rights, and this

caused the district court to contravene the Sentencing Guideline’s

proscription against using, to the detriment of the defendant,

confidential information disclosed during the defendant’s

debriefing. The Government asserts the information concerning the

Suburban had been disclosed earlier by Gonzalez in objections to

the PSR and therefore was no longer privileged, that according to

U.S.S.G. 1B1.8 the information can be disclosed but not “used

against” the defendant, and any error by the court was harmless

because there was ample independent evidence to support the court’s

decision to enhance the sentence by denying Gonzalez’s objection

that he did not have a leadership role in the offense.

8 DISCUSSION

The arguments asserted in this case are interwoven around the

question of whether information Gonzalez provided in the debriefing

was used against him which was a breach of the agreement between

Gonzalez and the Government. Whether the Government’s conduct

violated the terms of the plea agreement is a question of law which

this court reviews de novo.5 United States v. Saling,

(5th Cir. 2000). The party alleging a breach of the plea

agreement bears the burden of proving the underlying facts

establish a breach by a preponderance of the evidence. Wilder, 15

F.3d at 1295. “In determining whether the terms of the plea

bargain have been violated, [this] court must determine whether the

government’s conduct is consistent with the parties’ reasonable

understanding of the agreement.” Id. (internal quotations and

citations omitted). Furthermore, where the government has breached

or elected to void a plea agreement, the defendant is necessarily

released from an appeal waiver provision contained therein. United

States v. Keresztury,

(5th Cir. 2002). If the

5 The Government argues that Gonzalez is entitled to only plain error review because he failed to raise a contemporaneous objection at sentencing. Gonzalez, however, raised his objection before the district court entered judgment. Furthermore, Gonzalez raised his objection within the seven days required by Fed. R. Crim. P. 35(c) to correct a plain error such as the governments breach of a plea agreement. Fed. R. Crim. P.35(c); see also United States v. Wilder,

(5th Cir. 1994) (finding that the “government’s breach of a plea agreement can constitute plain error”).

9 government breached its plea agreement, Gonzalez may seek one of

two remedies: (1) specific performance, requiring that the sentence

be vacated and that a different judge sentence the defendant; or

(2) withdrawal of the guilty plea. Saling,

.

Pursuant to the plea agreement and proffer letter, the

Government could only disclose information obtained during the

debriefing: (1) if one of U.S.S.G. § 1B1.8(b) exceptions applied;

or (2) for the purpose of cross-examination, impeachment, or

rebuttal if Gonzalez testified contrary to the proffer at any

proceeding. The Government has never argued that any of the

exceptions listed in § 1B1.8(b) apply. Nor does the Government

argue on appeal that it was using the information as allowed under

a provision in the proffer letter. Further, a plain reading of the

proffer letter indicates that the parties’ reasonable understanding

would be that those provisions would only be triggered if Gonzalez

testified in a proceeding. This does not, however, mean that mere

disclosure of the information was a breach of the agreements.

“A prosecutor has a duty to insure that the court has complete

and accurate information concerning the defendant, thereby enabling

the court to impose an appropriate sentence.” United States v.

Block,

(5th Cir. 1981). As this court has held

before, § 1B1.8 does not prohibit disclosure of information

provided in a plea agreement at sentencing, but rather, it

prohibits this information from being used to determine the

10 applicable guideline range. United States v. Taylor,

,

724 n.4 (5th Cir. 2001); see also U.S.S.G. 1B1.8, comment. (n.1)

(2000).

Because the Government's disclosure was used in this case to

determine the applicable guideline, whether the Government’s

disclosure corrected a misstatement made by defense counsel is

irrelevant. Accordingly, it is unnecessary to determine whether

defense counsel actually made a misstatement. Likewise, the

Government’s contention that Gonzalez disclosed the same

information earlier in objections to the PSR is similarly

irrelevant, even assuming that Gonzalez did actually earlier

disclose what the Government later used against him at the

sentencing hearing. Gonzalez’s objections, which were filed under

seal, do not change the prohibition against the Government using

information it obtained at the debriefing against Gonzalez at

sentencing. According to our case law, the Government was not

allowed to use the information against Gonzalez unless the

Government can show that the information came from a wholly

independent source. Taylor,

.

In this case, the information was used against Gonzalez to

determine the applicable guideline range. The Government did not

use the information concerning the Suburban in order to clear up a

misunderstanding and then inform the court that such information

could not be used against Gonzalez because of the plea agreement.

11 Rather, in the face of the court's doubts about whether Gonzalez

had a leadership role, the Government argued, more than once, that

only Gonzalez knew of the Suburban and this indicated he was a

leader in the offense. Under the applicable preponderance of the

evidence standard, keeping in mind the reasonable expectation of

Gonzalez that his agreements prohibited information he provided the

Government at debriefing from being used against him absent any

exceptions, this agreement was breached.

Finally, the Government argues that the disclosure to the

district court that no one else provided the Government with

information about the Suburban is not privileged as to Gonzalez.

Because questions of privilege and breaches of plea agreements do

not involve the same legal principles, this argument only proves

that the Government did not obtain the information from an

independent source and therefore was prohibited from using such

information against Gonzalez. To agree with the Government would

open a backdoor to getting around plea agreements by allowing the

Government to use information obtained pursuant to a plea agreement

by claiming that they were not really “using” information but

merely pointing out that the defendant was the sole source of such

information. Likewise, the Government’s contention that there was

ample evidence supporting the district court’s decision that

Gonzalez had a leadership role is inapposite; and, furthermore, the

transcript indicates the court clearly did not find any other

12 evidence sufficient to support such a finding. See Saling,

(holding that if a breach has occurred, the sentence

must be vacated regardless of whether the court was influenced by

the Government’s actions).

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefings and oral arguments, for the reasons

set forth above we conclude that the Government used information

provided by Gonzalez at the debriefing against him and therefore

breached the plea agreement. Therefore we VACATE Gonzalez's

conviction and sentence and REMAND this matter to the district

court for further proceedings before another judge.

13