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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 Gonzalezthat 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, 205 F.3d
764, 766 (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, 293 F.3d 750, 755 (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, 15 F.3d 1292, 1301 (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, 205 F.3d at 768.
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, 660 F.2d 1086, 1091 (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, 277 F.3d 721,
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, 277 F.3d at 726-27.
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, 205
F.3d at 766-67 (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