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UNITED STATES COURT OF APPEALS
For the Fifth Circuit
___________________________
No. 93-7124
___________________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS

JOSE GARCIA-BONILLA,
Defendant-Appellant.
___________________________________________________
Appeal from the United States District Court
for the Southern District of Texas
____________________________________________________
(December 17, 1993)
Before REAVLEY and DAVIS, Circuit Judges, and ROSENTHAL1, District
Judge.
DAVIS, Circuit Judge:
Jose Garcia-Bonilla (Garcia) pled guilty to one count of a
two-count indictment charging him with conspiracy to possess with
intent to distribute a controlled substance, and aiding and
abetting in the possession with intent to distribute a controlled
substance in violation of 21 U.S.C. § 841(a)(1), (b)(1)(a) and 18
U.S.C. § 2. Garcia challenges his sentence on the ground that the
prosecution violated the plea agreement by failing to move for a
downward departure for Garcia's substantial assistance. We
conclude that the government did not violate the plea agreement and
we affirm.
1 District Judge of the Southern District of Texas, sitting
by designation.

I.
Garcia pled guilty under Fed. R. Crim. P. 11(e)(1)(B) pursuant
to a written plea agreement. In the plea agreement, the prosecutor
agreed to dismiss one count of the two-count indictment and refrain
from further prosecuting Garcia for the criminal conduct charged in
the indictment. The government also retained the option of moving
for a downward departure under the Sentencing Guidelines if Garcia
provided substantial assistance to the government. Specifically,
this section of the agreement provided:
The United States reserves its option to seek any
departure from the applicable sentencing guidelines,
pursuant to Section 5K of the Sentencing Guidelines and
Policy Statements, or Rule 35(b) of the Federal Rules
Criminal Procedure, if in its discretion, it is
determined that such a departure is appropriate. The
defendant agrees that the decision whether to file such
a motion rests within the sole discretion of the United
States.
At the rearraignment, the Assistant U. S. Attorney stated that
Garcia and his co-defendants had agreed to testify against one
another and to cooperate with U.S. Customs Agents. The U.S.
Attorney went on to state that:
And provided that they do tell the truth regarding
these matters, the Government will so advise the Court,
and if they have provided substantial assistance as
provided for in the plea agreement, the Government will
file with the court a 5K1.1 motion asking for the court
to consider a downward departure from the Sentencing
Guidelines. . . .
If the defendants live up to their agreement, I feel
certain that the U.S. Attorney's Office for the Southern
District of Texas, Houston Division will live up to our
agreement whether it's me personally or some other
prosecutor representing the Government.
At sentencing however, the government refused to move for a
downward departure, stating that the information Garcia had
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provided was of no value to law enforcement officers. The district
court, citing Wade v. United States, ___ U.S. ___, 113 S. Ct. 1840,
118 L. Ed. 2d 524 (1992), refused to depart downward under § 5K1.1
and sentenced Garcia to the statutory minimum of 120 months. In
this appeal, Garcia contends that the government breached the plea
agreement by refusing to move for a downward departure under §
5K1.1.
II.
Garcia argues that the government breached its plea agreement
and requests specific performance of the agreement. Specifically,
Garcia requests that he be resentenced with the benefit of a §
5K1.1 downward departure.
Whether the government's conduct violates the terms of a plea
agreement is a question of law. United States v. Valencia, 985
F.2d 758, 760 (5th Cir. 1993). The defendant bears the burden of
proving the underlying facts that establish a breach by a
preponderance of the evidence. United States v. Hernandez, 996
F.2d 62, 64 (5th Cir. 1993). In determining whether the government
has violated a plea agreement, we must determine "whether the
government's conduct is consistent with the parties' reasonable
understanding of the agreement." Valencia, 985 F.2d at 761.
In Wade, 113 S. Ct. at 1844, the Supreme Court held that a
sentencing court could not grant a defendant a downward departure
under § 5K1.1 in the absence of a government motion requesting such
relief. The Court also held that § 5K1.1 does not require the
government to move for a downward departure if the defendant
provides substantial assistance, but rather grants the government
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discretionary power to make such a motion. Id. It follows
therefore that a defendant who provides substantial assistance
without receiving a downward departure is not entitled "to a remedy
or even to discovery or an evidentiary hearing" unless the
prosecution relied on an unconstitutional motive in refusing to
file a 5K1.1 motion. Wade, 113 S. Ct. at 1844.
But the Court in Wade recognized that the government could
sacrifice its discretion and obligate itself to move for a downward
departure in exchange for the defendant's guilty plea. Garcia
asserts that his guilty plea was given in exchange for such an
obligation. In support of his position, Garcia relies on United
States v. Watson, 988 F.2d 544, 552 (5th Cir. 1993), pet. for cert.
filed, (U.S. July 29, 1993) (No. 93-5407) and Hernandez, 996 F.2d
at 64, where this court recognized that the government can bargain
away its discretionary power to move for a downward departure under
§ 5K1.1. Garcia's reliance on Watson and Hernandez is misplaced
because his plea agreement is distinguishable from the plea
agreements in those cases.
The plea agreement in Watson provided that "if the defendant
complie[d] with section 5K1.1 of the sentencing guidelines, the
Government w[ould] file a motion . . . asking for a downward
departure." Id. at 548. We held that the government "did not
reserve the discretion to determine whether the defendant's
cooperation merited a § 5K1.1 motion," and therefore remanded for
findings as to whether the defendant had complied with the plea
agreement, entitling him to a downward departure. Id. at 551. The
plea agreement in Hernandez provided that "the government may make
4

a motion for downward departure at sentencing." Hernandez, 996
F.2d at 65. The court noted that "the record shed[] no light on
the degree of discretion, if any, the parties intended for the
government to retain by the use of the permissive word 'may'," and
remanded the case for an interpretation of the agreement. Id.
By contrast, the agreement Garcia entered into with the
government expressly provides that the government retains absolute
discretion to move for a downward departure under § 5K1.1: "The
defendant agrees that the decision whether to file [a 5K1.1] motion
rests within the sole discretion of the United States." (emphasis
added). The agreement therefore plainly reserves the government's
discretion to receive information from the defendant and then
exercise its discretion on whether to file for a downward
departure. The agreement does not obligate the government to move
for a downward departure. In the absence of such an obligation,
the defendant is not entitled to relief under Wade unless the
government's refusal to file a § 5K1.1 motion was based on an
unconstitutional motive. Garcia does not argue that the
government's refusal was based on an unconstitutional motive.
Moreover, the prosecutor's statements at rearraignment did not
amend the plea agreement to reduce the government's discretion to
move for a § 5K1.1 departure. Although the prosecutor referred to
the government's willingness to file a § 5K1.1 motion, the
prosecutor agreed to make such a motion in accordance with the plea
agreement. The prosecutor gave no indication that the government
intended to relinquish the discretion it had expressly retained
under the written agreement. The prosecutor stated that the
5

government would file for a downward departure if Garcia "provided
substantial assistance as provided for in the plea agreement."
(emphasis added). The prosecutor also warned that his authority to
move for a downward departure was also conditioned on the approval
of his supervisors.
Because the government retained sole discretion under the plea
agreement to seek a downward departure for Garcia's substantial
assistance, the government's failure to file a § 5K1.1 motion did
not constitute a breach of the plea agreement. Garcia therefore is
not entitled to be resentenced and we therefore affirm his
sentence.
AFFIRMED.
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