* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 00-50086

Civil Docket # DR-98-CR-571-ALL-FB

_______________________

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

JUAN JOSE GALAN-MORALES, also known as Juan Jose Galan,

Defendant-Appellant.

_________________________________________________________________

Appeal from the United States District Court

for the Western District of Texas

_________________________________________________________________

April 17, 2002

Before JOLLY, JONES, and BARKSDALE, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

The appellant pled guilty to the charge of engaging in a

continuing criminal enterprise in violation of 21 U.S.C. § 848. He

was sentenced, inter alia, to 250 months imprisonment. On appeal,

Galan asserts that the government breached the plea agreement by
2

failing to request a downward departure and by failing to explain

the full extent of Galan’s cooperation to the district court at

sentencing. He also denies that his guilty plea was supported by

a sufficient factual basis and challenges the waiver of appeal in

the plea agreement. Finding no reversible error, we affirm the

conviction and sentence.

Twice in the written plea agreement, the government

reserved the right to solely determine whether Galan’s cooperation

was truthful and substantial so as to encourage the government to

recommend a downward departure under U.S.S.G. § 5K1.1. This court

has held that when a plea agreement expressly states that the

government retains sole discretion whether to submit a motion for

downward departure, the refusal to do so is reviewable only for

unconstitutional motives. United States v. Price, 95 F.3d 364, 368

(5th Cir. 1996). Galan’s counsel downplays this rule by suggesting

that in open court, both the judge and prosecutor made misleading

statements to Galan concerning the government’s discretion to

suggest downward departure. Having reviewed pertinent portions of

the transcripts of those hearings, we disagree with Galan’s

characterization of the record. In instances where the prosecutor

referred to the possibility of a § 5K1.1 motion, he also said there

were “no guarantees,” and the district court’s statements

corroborate this explanation. Further, the cases cited by Galan

are distinguishable, because they involve written cover letters
3

that effectively modified the written plea agreements. See, e.g.,

United States v. Melton, 930 F.2d 1096, 1098 (5th Cir. 1991);

United States v. Fields, 906 F.2d 139, 142 (5th Cir. 1990). And in

another case, this court looked outside the four corners of the

plea agreement and found the defendant’s guilty plea involuntary,

because, during the rearraignment hearing, the district court

misrepresented that it could consider a downward departure under

§ 5K1.1. even if the government did not make such a request.

United States v. Amaya, 111 F.3d 386, 387-88 (5th Cir. 1997). In

sum, the statements made by the government, defense counsel and the

district court at rearraignment were simply too ambiguous to

overcome the clear language of the plea agreement. 

Galan next argues that the government breached the plea

agreement by failing to tell the district court at sentencing of

the full extent of his cooperation. Such an omission can breach a

plea agreement when the agreement calls for the government to make

known to the sentencing court the extent of the defendant’s

truthful and substantial cooperation. United States v. Hooten, 942

F.2d 878, 883 (5th Cir. 1991). The government’s failure to inform

the sentencing court of the defendant’s assistance does not

constitute reversible error, however, when the court is generally

aware of the defendant’s cooperation and the extent thereof. Id.

at 884.
4

The extent of Galan’s cooperation became a matter of

vigorous dispute, as Galan challenged the government’s failure to

request a § 5K1.1 downward departure. Although Galan testified for

the government in the Iglesias prosecution, he had also sent

letters to potential witnesses, at least one of which could be

characterized as threatening. The government had determined

Galan’s effectiveness as a witness was ruined by these letters.

Defense counsel also told the court that Galan gave information to

the Customs people a few times; that his name was used as a

potential witness by prosecutors in trying to induce other guilty

pleas; and that he gave information to the government concerning

dirty agents. A DEA agent testified concerning information he

received from Galan about several individuals. As a result, the

district court was generally informed from all these sources of the

extent of Galan’s cooperation. As we said in Hooten, “this case

clearly does not present a situation in which the government’s

failure to act in a more affirmative manner violated the essence of

the plea agreement so as to require resentencing.” Hooten, 942

F.2d at 884.

Because Galan’s challenge to the factual basis supporting

his plea was not raised in the district court, we review it for

plain error only. To be guilty of engaging in a continuing

criminal enterprise, Galan must have “obtained substantial income

or resources” from his involvement in a series of drug offenses.
5

21 U.S.C. § 848(c)(2)(B). Galan argues that the amount of income

he obtained through his drug trafficking was not “substantial” as

required by the CCE statute. During the rearraignment hearing,

changes were made to the written factual basis for the plea, and

the district court posed questions to Galan. Galan’s written and

oral statements indicate that he helped transport numerous loads of

marijuana for $3,000 to $15,000 per load and that he received other

considerable sums from drug proceeds. There was no error, much

less plain error, in the district court’s finding that the plea had

a sufficient factual basis. 

Galan’s final issue challenges the sentence for his

crime. This matter was, however, expressly waived in the plea

agreement, and Galan has not established the unenforceability of

that agreement. 

For the foregoing reasons, the conviction and sentence

are AFFIRMED.