2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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# U S A v . F ue n t es P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-3215

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w . v i l l a no va . e du/thir dc ir c uit_2004/672* The Ho nora ble A rthur L . Alarc ón, S enior J udg e, Un ited Sta tes C ourt o f A ppea ls

for the Nint

h Circuit , si tti ng by des ignati on. NOT PRE CEDENT IAL

UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

____________ No. 03-3215

____________ UNITED S TATES OF AMERI CA

v. CESAR FU ENTES, Appellant

____________ On A ppeal from the Un ited States District Co urt

for the Dis tri ct of New Jersey (D.C. No. 02-cr -00806) District Judge: T he H onorab le Garrett E. B rown , Jr.

____________ Submitte d Under Third Circ uit LAR 34.1(a)

May 27, 2004 Be for e: S CIR ICA , Chief Judge , F IS HER a nd A LARCÓN, * Circu it Judges
. (Fil ed: May 28, 2004)

____________ OPINI ON OF THE COURT

____________2

FIS HE R, Circu it Judge
. Ces ar Fu entes a ppea ls from the distric t court’s refus al to co mp el the g over nm ent to execute i ts cont

ractua l agree ment to move for a downward departure. The government refused t o move for a downward departur e foll owing its determi nation t hat Fuente s committed c rimes i n breach of cooper ation a greements he had enter ed into wit h the government. We conclude that the government ’s det ermination that Fuentes committed crimes i n breach of the agreements was made in good fait h, and we ther efore affi rm the judg men t of the district co urt. I. On Oc tober 2 9, 200 2, Fu entes p led gu ilty to charg es of cons piring to com mit m ail fraud. I n connecti on with his guilt y pl ea, Fuent es entered into two cooperati on agreements , one with the Unite d States Attorney ’s Office for the Dist rict of New Jersey (the New Jerse y Agreement ) and one with t he United States Att orney ’s Office for the Eastern Dis tri ct of New York (the New York Agreement) (the Agreements). The Agreements both required t he government t o move for a downward departur e in the event Fuentes ful ly complied wit h his obl igati ons, i ncluding t he obligation not

to commit or attempt to com mit any further crime s. The A greeme nts expressly provided that were Fuentes t o commit any crimes, the government would be rele ased from it s contr actual obligat ion to move for

a downward departure. The New Jersey Agreement conferred “sole di scretion” to t

he government i n determi ning whether Fuentes complie d with the3

Agreement; t

he New Y ork Agreement re quired onl y that the government’s determi nation as to Fu ente s’s c om plian ce b e un der take n in “go od f aith.” On M arch 8, 2003, prior to Fuentes ’s sentencing hearing, New Jerse y l aw enforcement authori ties arres ted and char ged Fuentes wit h kidnapping, robberyand
assau lt. On M ay 1, 200 3, after inform ing F uente s’s cou nsel tha t the go vern men t wo uld not move for a downward depart ure because Fuentes had br eached the Agreement s by committi ng other crimes, a government attorneymet with Fuent es to hear his ver sion of events. Finding Fuent es’s ver sion l acking i n credibi lit y and i nconsistent with t he evidence obt ained bystat e investigator s, the government r eaffirmed its pos iti on that Fuentes h ad breach ed the A greeme nts and that it conse quently wou ld not mo ve for a dow nwa rd departure. F uentes m oved to c omp el the gove rnmen t to file a dow nwa rd departure motion. The district c ourt cons idered t he motion at

Fuentes’ s sente ncing hearin g on July 7, 20 03, an d den ied it. II. We have juris dicti on under 28 U.S.C. § 1291 and 18 U.S.C. § 3742( a). Fuentes assert s that

the government ’s ref

usal t o move for a downward departur e consti tuted a breac h of the A greem ents en titling him to relief . The gov ernm ent co unters that it on ly decided not

to move for a downward depart ure once i t dete rmined that Fuentes had breached the Agreements bycommitti ng crimes, a breach that, under the pl ain te rms of the Agreements , rel eased the government fr om its obl igati on to so move. Fuentes1 We note that Fuentes did not expressl y ar gue that

the government

acted i n bad faith b efore the distric t court, n or ha s he d one s o to this Co urt. N oneth eless, w e w ill consider his ar gument concerni ng weaknesses i n the evi dence supporting the c harges against him as one chal lenging t he good faith of the government’s determination that he committed t

he crimes wit

h which he has been char ged.

4 contest s the government’s vi ew that he br eached the Agreement s by c ommitti ng a crime, argu ing tha t the go vern men t’s determ ination wa s “un ilateral[ ] a nd p rema ture” a nd co uld not support a conclusion that Fuentes breached the Agreements unless and until he has a “meaningful oppor

tunit y” t o defend himsel f against the char ges. I ndeed, Fuent es goes furthe r, arguin g that th e gov ernm ent ca nno t determ ine tha t he ha s com mitted a crim e in violation of the Agreements until a j ury decides bey ond a reasonable doubt that he has. Fuentes’ s contentions ar e meritless. We have made plain that “[w]hen there is an agreement, the dis tri ct court may interpret

the agre ement accordi ng to contr act pri nciple s and consider

whether the government has a cted i n good faith in choosi ng not to move for the downward departure.” United States v. Swint , 223 F.3d 249, 253 n. 5 (3d Cir . 2000) (cit ation omi tted) . “Pres umably, a dist rict court mayalso determine whether the government has a cted with an unconsti tuti onal moti ve in thi s cir cumstance. ” Swint , 223 F.3d at 253 n. 5. Thus, t he government need not prove a defendant ’s brea ch of a plea agreement byany measure of evidence, but must onl y act without uncons tit

utionalmotive and in good fai th. Fu ente s no wh ere a rgu es th at the gov ern me nt ac ted w ith u nco nstitu tion al m otiv e. Thus, we examine the record onl y for evidence t

hat the government acted in bad fai th. 15

We have not often anal yzed “ good faith” in the plea agr eement conte xt. I n United States v. Is aac , 141 F.3d 477 (3d Cir. 1998 ), reviewing t he government’ s determinati on that t he defendant had br eached a cooperation agreement by fail ing to pr ovide subst antia l assis tance, we said that

“good faith” required only “that the government ’s posi tion be based on an honest

evaluation of the assis tance pr ovided and not on consider ations extrane ous to that ass ist ance.” Isaac , 141 F.3d at 484. The government cont ends that it ac ted in good f

aith i n reachi ng its conclusi on that defe ndan t com mitted crime s bec ause it (1) disc ussed the of fens es w ith the c oun ty prosecutor’s office; ( 2) gave Fuentes two opp ortuniti es to present his vers ion of events; and (3) e valu ated Fu ente s’s st ory ag ains t the e vid enc e pr ese nted by the state pro sec uto r. The g overnm ent also argue s that its determination is sup ported by the O perations R eport from the Lawrence Township Pol ice Department, as well as t he statements of the all eged kidnapping vi ctim (J ose Morales) , who identifie d one of the per petrators as “Cesar” and provided a photo identificati on of Fuentes as one of his assailants. This is suffici ent to e stabl ish “good fai th.” Indeed, at lea st one of our sister circui ts has he ld that

the mere exi stence of

crimina l charge s is s uffici ent to s upport a good faith determi nation t

hat a defendant

has committ ed crimes f or purposes of a cooperation agr eem ent. See United S tates v. Grego ry , 245 F.3d 160, 164 (2d Cir. 2001) (hol ding that “cha rges f iled ag ainst G rego ry provid ed a g ood faith b asis fo r the G over nm ent to determi ne that

he had breached hi s obli gation not to commit any

further crimes. ”)6

(cit ation omi tted) . Fuente s’s contentions about the evidence s upporti ng the char ges again st him , even if valid , do no t establish that the gov ernm ent ac ted in b ad fa ith in finding that he committed the crimes for purposes of the Agreements. Ac cord ingly, we will af firm th e judg men t of the district co urt.

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