74 F.

3d 22

UNITED STATES of America, Appellee,

v.
Edgardo RESTO, Defendant-Appellant.
No. 1628, Docket 94-1678.

United States Court of Appeals,

Second Circuit.
Argued June 8, 1995.
Decided Jan. 3, 1996.

Jane S. Smith, New York City (Larry J. Silverman, New York City, of
counsel), for Defendant-Appellant.
Lisa Fleischman, Assistant United States Attorney, Brooklyn, NY
(Zachary W. Carter, United States Attorney, Peter A. Norling, Assistant
United States Attorney, E.D.N.Y., Brooklyn, NY, of counsel), for
Appellee.
Before: OAKES, MINER and LEVAL, Circuit Judges.
LEVAL, Circuit Judge:

Edgardo Resto appeals from a judgment of the United States District Court for
the Eastern District of New York (Raggi, J.), convicting him, after a plea of
guilty, of possessing cocaine with the intent to distribute it, in violation of 21
U.S.C. Sec. 841(a). Resto was sentenced primarily to sixty months in prison
and five years supervised release. He appeals his sentence, arguing that the
district court erred by: (1) failing to enforce a cooperation agreement that he
had entered into with the government, pursuant to which--after providing
substantial assistance--he was to have received the benefit of a letter from the
government to the court allowing the court to sentence him below the statutory
minimum five year prison term and the applicable guidelines range (a
"Departure Letter"), see 18 U.S.C. Sec. 3553(e); U.S.S.G. Sec. 5K1.1; and (2)
failing to apply the "escape valve" provisions of 18 U.S.C. Sec. 3553(f) to
sentence him within the guidelines range but below the statutory
mandatoryminimum sentence. We affirm.

Background
2

Resto was arrested in Jacksonville, Florida on February 5, 1993, after

purchasing 4.48 kilograms of cocaine from a government informant. At the
time of his arrest, he had instructions to deliver the cocaine to William
Aranaga-Rojas in Queens, New York. Resto agreed to cooperate with
government agents, and accompanied them to New York. On February 8, 1993,
he participated in the controlled delivery of the cocaine to Aranaga, which
resulted in Aranaga's arrest. Thereafter, Resto was indicted in the United States
District Court for the Middle District of Florida on one count of possessing
cocaine with the intent to distribute it. He was released on bail, and allowed to
return to his home state of Connecticut.

The government intended to have Resto testify at Aranaga's trial, and began to
prepare him. On May 3, 1993, two days before the trial was scheduled to begin,
Resto signed a cooperation agreement with the government. He agreed to plead
guilty to the drug possession offense, and to cooperate with the government.
Resto also promised not to give "false, misleading or incomplete information"
or to "commit[ ] or attempt[ ] to commit any further crimes." In return, the
government agreed that, if it determined that Resto met his obligations, it
would file a motion pursuant to U.S.S.G. Sec. 5K1.1 and 18 U.S.C. Sec.
3553(e), allowing the court to impose a sentence below the guidelines range
and statutorily prescribed mandatory minimum. The government also agreed
not to oppose a downward adjustment of three offense level points for
acceptance of responsibility, pursuant to U.S.S.G. Sec. 3E1.1.

Aranaga pled guilty on the morning of the trial. As a result, Resto was never
called upon to testify. After his case was transferred from the Middle District of
Florida to the Eastern District of New York, he appeared before the district
court on August 4, 1993. The court delayed sentencing for preparation of a pretrial services report to help assess his bail conditions.

Resto was then interviewed by a pre-trial services officer. In the course of this
assessment, the officer conducted a computerized fingerprint search. This
investigation revealed that Resto had failed to disclose eleven earlier arrests
under various aliases relating to casino fraud, even though federal agents had
asked him about his past criminal history on several occasions: first, just before
the controlled delivery to Aranaga; second, at the time of his release on bail in
Florida; and again, in the course of preparing him to testify at Aranaga's trial.
When the officer confronted Resto with this information, he once more denied
the prior arrests. Shortly thereafter, he fled the courthouse. Resto remained at
large until January 5, 1994, when he was arrested in New Jersey, again on

charges of casino fraud.

6

On March 12, 1994, Resto pled guilty to the original Florida indictment. Prior
to the time of his plea, the government made clear its view that Resto had
breached the cooperation agreement, and that it did not intend to file a
Departure Letter allowing the court to relieve him of the mandatory minimum
and the guidelines range.

The amended presentence report recommended a total offense level of 25,1 and
a criminal history category of III.2 This resulted in a guidelines sentencing
range of 70 to 87 months. Because of the quantity of cocaine involved, Resto
was in any event subject to a five year mandatory minimum sentence. See 21
U.S.C. Sec. 841(b)(1)(B)(ii).

At sentencing, the district court found that under the circumstances the
government was not obliged by the terms of the cooperation agreement to
provide a Departure Letter. The district court also found inapplicable the
"safety valve" exception, 18 U.S.C. Sec. 3553(f), which permits a sentencing
court to disregard statutorily imposed mandatory minimum sentences where,
inter alia, an offender has no more than one criminal history point as
determined under the guidelines. However, the court found that a criminal
history category of III overrepresented Resto's past criminal conduct. Judge
Raggi therefore departed from the guidelines and treated Resto as if he had a
criminal history category of I, resulting in a guidelines sentence of 57 to 71
months. The district court then sentenced Resto within this range, to the
mandatory minimum of five years.

Discussion
I. The Cooperation Agreement
9

Resto argues that the district court erred by failing to find that the government
breached the cooperation agreement by refusing to file a Departure Letter. His
contention has no merit. The agreement provided that Resto would give
"truthful, complete and accurate information, and [would] cooperate fully with
[the government]." The agreement further provided that if the government
determined Resto had "cooperated fully, provided substantial assistance to law
enforcement authorities and otherwise complied with the terms of [the]
agreement, [it would] file a motion pursuant to Guidelines Manual Sec. 5K1.1
and Title 18 United States Code 3553(e)." The agreement made clear that "the
[government's] assessment of the value, truthfulness, completeness and
accuracy of the cooperation" were "binding" on Resto. In addition, it stated that

in the event the government determined that Resto had "intentionally given
false, misleading or incomplete information or testimony, or [had] committed or
attempted to commit any further crimes," the government would be released
from its obligations.
10

The terms of the agreement, therefore, make it unambiguous that the

government had considerable discretion whether to move for a downward
departure, based in part on its assessment of Resto's truthfulness and his
remaining free of criminal activities. We have examined claims relating to a
prosecutor's decision not to move for a downward departure pursuant to
similarly worded cooperation agreements many times in the past. Prosecutors
have broad latitude under such circumstances. See, e.g., United States v.
Knights, 968 F.2d 1483, 1487 (2d Cir.1992); United States v. Rexach, 896 F.2d
710, 713 (2d Cir.), cert. denied, 498 U.S. 969, 111 S.Ct. 433, 112 L.Ed.2d 417
(1990). "Because the prosecution often is in the best position to evaluate the
quality of a defendant's cooperation and to decide whether to make a
substantial-assistance motion, this decision, like other prosecutorial
determinations, may be subject to only limited review." Knights, 968 F.2d at
1487.

11

We recognize that the prosecutor's discretion is not unfettered. "[W]here the

explicit terms of a cooperation agreement leave the acceptance of the
defendant's performance to the sole discretion of the prosecutor, that discretion
is limited by the requirement that it be exercised fairly and in good faith."
United States v. Khan, 920 F.2d 1100, 1105 (2d Cir.1990), cert. denied, 499
U.S. 969, 111 S.Ct. 1606, 113 L.Ed.2d 669 (1991); see also United States v.
Kaye, 65 F.3d 240, 243 (2d Cir.1995); United States v. Hon, 17 F.3d 21, 25 (2d
Cir.1994); Knights, 968 F.2d at 1487; United States v. Agu, 949 F.2d 63, 67
(2d Cir.1991), cert. denied, 504 U.S. 942, 112 S.Ct. 2279, 119 L.Ed.2d 205
(1992). And the government's decision may, of course, never be based on
unconstitutional motives, relating, for example, to the race or religion of the
defendant. Wade v. United States, 504 U.S. 181, 185-86 (1992); Kaye, 65 F.3d
at 243.

12

Resto makes no claim that the government's decision not to move for a
downward departure was motivated by unconstitutional considerations. His
arguments that the government's decision was unfair or in bad faith are
unavailing.

13

Resto suggests first that the agreement is ambiguous as to the time period in
which it requires him to avoid further crimes and provide truthful information.
Specifically, he argues that the agreement can be read to control his behavior

only during the time and in the course of his assistance to the government. This
ambiguity, he contends, should be construed in his favor. Resto's reading is
unpersuasive. Nothing suggests that his obligation to comply with the law was
limited to that narrow period of time during which he actively cooperated with
the government, nor that his obligation of truthfulness related only to his
statements about others. Indeed, Resto's truthfulness about his own past
conduct was highly relevant to the quality of his cooperation. Had the
government actually gone to trial against Aranaga, a surprise revelation by the
defense as to Resto's criminal past would have substantially injured the
prosecution's case.
14

Resto argues second that his failure to reveal his criminal history cannot
constitute a breach of the cooperation agreement since the deception came prior
to the time that the agreement was signed. This claim, too, is unavailing. The
agreement states that the government will be released from its obligation upon
determining that "the defendant has failed to cooperate fully, or has
intentionally given false ... information." (emphasis added). Nothing suggests
that a deception by Resto is relevant only if made after the consummation of the
agreement. In any event, his lies to the pre-trial services officer came after the
plea agreement was signed.

15

Drawing upon a comment made by the prosecuting attorney at a pre-sentencing

hearing, Resto makes an additional argument. When he initially appeared for
sentencing before the district court on August 4, 1993, the court deferred
accepting his plea, deciding to wait for the preparation of the pre-trial services
report on his bail status that ultimately revealed his deception. In the course of
that hearing, the prosecutor stated that, as Aranaga had pled guilty, "[t]he
cooperation that [Resto] was supposed to give has essentially been completed,
he is continuing to cooperate with the government but we are ready at this time
to give him a 5K letter."

16

Resto argues that this statement constituted an oral modification of the

cooperation agreement, pursuant to which the government conceded his
substantial assistance and promised to move for a downward departure. This
claim is without merit. These remarks did no more than report the prosecutor's
current assessment of Resto's situation. They did not purport to change the
agreement. The cooperation agreement makes clear that any modifications to it
were to be written and signed by all parties. Furthermore, there is no indication
that Resto relied on these comments in any way. 3

17

Finally, Resto contends that, by requiring him to reveal his criminal history, the
cooperation agreement would have compelled him to give up his Fifth

Amendment privilege against self-incrimination. His argument has no merit. He

entered into the agreement voluntarily, electing to give up his privilege (to a
limited extent) in exchange for the benefits of the agreement. To the extent he
gave up constitutional rights, he did so voluntarily. There was no compulsion
and thus no violation of his rights. See United States v. Lawrence, 918 F.2d 68,
72 (8th Cir.1990), cert. denied, 499 U.S. 941, 111 S.Ct. 1399, 113 L.Ed.2d 455
(1991).
18

The government's decision not to move for a downward departure was fair, and
the prosecutor made it in good faith. Certainly Resto did provide some help to
the government, assisting in the arrest and conviction of Aranaga. However, he
repeatedly lied about his past criminal history, both before and after entering
into the cooperation agreement, in violation of his promise to "provide truthful,
complete and accurate information." In addition, he violated his agreement not
to commit further crimes. His flight from the courthouse and failure to appear
for sentencing, although never prosecuted, constituted the crime of bailjumping. See 18 U.S.C. Sec. 3146. And he was finally apprehended in the
course of committing a further offense. In Rexach we explained, "where the
explicit terms of a cooperation agreement leave the acceptance of the
defendant's performance to the judgment of the prosecutor, the prosecutor may
reject the defendant's performance provided he or she is honestly dissatisfied."
Rexach, 896 F.2d at 713. There can be no doubt that Resto breached the
agreement, and that the prosecutor had ample, good faith grounds to decline to
move for a downward departure.

II. The "Safety Valve" Exception

19

Resto contends that under 18 U.S.C. Sec. 3553(f), the sentencing judge should
have been free to sentence him below the mandatory minimum. The guideline
range applied by the district judge to Resto's offense was 57 to 71 months.
Section 841(b)(1)(B)(ii) of Title 21 U.S.Code provided for a mandatory
minimum sentence of 60 months imprisonment. Judge Raggi sentenced Resto to
60 months, noting that, absent the statutory minimum, she might have given
him a lesser sentence within the guidelines range. Resto contests Judge Raggi's
determination that the mandatory minimum statute applies, arguing that he falls
within the "safety valve" exception for defendants with limited criminal
histories. See 18 U.S.C. Sec. 3553(f)(1). We find that Judge Raggi properly
interpreted the statute.

20

The "safety valve" provision, recently enacted as a part of the Violent Crime
Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796
(1994) (codified at 18 U.S.C. Sec. 3553(f)), permits a defendant to be sentenced

below statutory mandatory minimums that would otherwise apply if "the

defendant does not have more than 1 criminal history point, as determined
under the sentencing guidelines," 18 U.S.C. Sec. 3553(f)(1), and the defendant
meets other qualifications. In such circumstances, the statute provides that the
court "shall impose a sentence pursuant to [the] guidelines ... without regard to
any statutory minimum sentence." 18 U.S.C. Sec. 3553(f).
21

By reason of his prior convictions, Resto had four criminal history points,
placing him in Criminal History Category III. Judge Raggi, however,
determined that this overstated his criminal history, and hence granted him a
downward departure--from Criminal History Category III, to Category I-pursuant to U.S.S.G. Sec. 4A1.3. Category I is defined to include only those
defendants who have zero or one criminal history points. See U.S.S.G. Ch. 5 Pt.
A. Resto argues that, notwithstanding his four criminal history points, he
should be found to come within the specifications of Sec. 3553(f) because, by
downward departure, Judge Raggi treated him as if he had only one criminal
history point.

22

We find that Judge Raggi interpreted the statute correctly in denying its benefit
to Resto. Section 3553(f) states that the safety-valve provision is to apply only
where "the defendant does not have more than 1 criminal history point, as
determined under the sentencing guidelines." 18 U.S.C. Sec. 3553(f)(1)
(emphasis added).

23

Furthermore, U.S.S.G. Sec. 5C1.2, written by the Commission to interpret Sec.

3553(f), similarly provides that, to be eligible for the safety valve provision, the
defendant must have "[no] more than 1 criminal history point, as determined
under the sentencing guidelines." U.S.S.G. Sec. 5C1.2(1). The commentary that
accompanies the guideline interprets this passage to mean "more than one
criminal history point as determined under Sec. 4A1.1 (Criminal History
Category)." U.S.S.G. Sec. 5C1.2 comment. (n. 1). Section 4A1.1 is the
schedule that specifies how a sentencing court should calculate a defendant's
criminal history points. It is not disputed that Resto has four criminal history
points, as determined under Sec. 4A1.1. Notwithstanding that the sentencing
judge elected to depart by treating Resto as falling in Criminal History
Category I, rather than Category III where his four points originally placed
him, he nonetheless has four criminal history points. He is thus ineligible for
the safety valve provision of Sec. 3553(f).

24

We therefore find no error in the district court's determination that the five year
mandatory minimum sentence applies to Resto.

Conclusion
25

For the reasons stated above, the judgment of the United States District Court
for the Eastern District of New York is affirmed.

Starting from a base offense level of 30, the presentence report recommended a
four level reduction for Resto's limited role in the offense, a three level
reduction for acceptance of responsibility, and a two level increase for
obstruction of justice in fleeing the courthouse when the deception as to his
prior criminal history was discovered

Resto's prior convictions on gambling fraud offenses resulted in four criminal

history points, the minimum necessary for a criminal history category of III.
See U.S.S.G. Ch. 5 Pt. A

Resto cites in his support United States v. Martin, 25 F.3d 211 (4th Cir.1994),
in which the Fourth Circuit held that the government's comments at sentencing
to the effect that it intended to make a substantial assistance motion "within the
year" constituted a binding, oral modification of the plea agreement that
"required the government to make a timely substantial assistance motion." Id. at
217. As we read that decision, it rests not on the government's statement, but on
the court's view that the defendant had fully performed in the manner expected
of him, a position that the government supported on appeal. Notwithstanding
the Martin court's emphasis on the government's courtroom declaration, we
doubt that case would have come out differently absent the government's
statement. Here, in contrast, it is clear that although the Assistant was at first
unaware of the fact, Resto never complied with the cooperation agreement.
Martin 's quite different circumstances distinguish the case. See id. at 217 n. 4
(noting that "parties' obvious willingness to modify orally the plea agreement"
and the "special circumstance of a mutually agreed upon modification made in
open court" should not be taken to undermine "commitment to the general rule
that integrated written plea agreements are not open to oral supplementation")