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United States v. Palomo

decided: August 5, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
EDGAR ROLANDO PALOMO, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of Texas. D.C. DOCKET NUMBER CR-H-91-165-5. JUDGE Sim Lake

Before Reavley, Duhe, and Barksdale, Circuit Judges.

Author: Barksdale

BARKSDALE, Circuit Judge:

Having pleaded guilty to conspiracy to possess with the intent to distribute over five kilograms of cocaine, Edgar Rolando Palomo challenges both his conviction and sentence, contending that the Government breached the plea agreement by refusing to conduct a debriefing interview, and that the district court erred in calculating his sentence under the Sentencing Guidelines. We AFFIRM.

I.

In April 1990, the Drug Enforcement Administration (DEA) identified Palomo's father as the organizer of a Guatemalan-based cocaine smuggling operation. Later, DEA agents discovered Palomo's involvement. Among other things, Palomo attended a meeting with a Columbian national responsible for transporting large shipments of cocaine; participated in a plan to transport approximately 150 kilograms of cocaine from Guatemala to the United States; agreed to drive a truck in which cocaine was to be concealed in a false compartment in the gas tank; recruited another individual as a driver; and traveled to Mexico to pay a bribe in furtherance of the conspiracy.

On September 10, 1991, Palomo and other conspirators were arrested; and 116 kilograms of cocaine (including 14 in Palomo's truck) were seized during the execution of search warrants. Through debriefings, intelligence sources, and related investigations, agents documented an additional 111 kilograms of cocaine transported during the course of the conspiracy.

Palomo was charged with conspiracy to possess with the intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (count one), and possession with the intent to distribute in excess of five kilograms of cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and (b)(1)(A), and 18 U.S.C. § 2 (count two).

On February 10, 1992, Palomo pleaded guilty to the conspiracy count; in exchange, the Government agreed to dismiss count two, stipulate that Palomo had accepted responsibility, and recommend a sentence at the bottom of the applicable guideline range. The plea agreement further provided that:

The United States will file a motion for downward departure under Section 5K1 of the Sentencing Guidelines, should I [Palomo] provide substantial assistance.

I understand that if I am called to testify before a Grand Jury or a trial jury concerning this information that I must not only tell the complete truth concerning any question I am asked, but I must not withhold any evidence that may relate to the guilt or innocence of any other person. I know that my response to all questions whether they be by the Assistant United States Attorney, the Defense attorney or the U.S. District Judge must be the truth.

The Government did not file a § 5K1.1 motion for downward departure prior to the sentencing hearing, because it determined that the information Palomo had provided was not helpful. At the sentencing hearing on July 2, 1992, asserting that Palomo's failure to provide substantial assistance was caused by the agents' failure to actively work on the case, Palomo's counsel stated:

My client was one of the men that the agent previously referred to [at the sentencing of a co-defendant earlier in the hearing*fn1 ], who was initially debriefed and cooperated in the incident where he detailed the showing of the map, etcetera. ... We actually agreed to cooperate at that time, then our clients were returned to custody, and it was our understanding that the agents would actively work the case. And despite our request and the lack of them following through on that, so much time has elapsed, I do agree that now it's probably nearly impossible that my client could still provide substantial assistance.

The agent denied that he had not been working on the case, stating that Palomo had provided incorrect leads, which were not helpful. The agent stated, however, that Palomo had provided information applicable to an ongoing investigation, and that the Government would consider filing a Fed. R. Crim. P. 35 motion for reduction of Palomo's sentence if he provided substantial assistance with respect to that investigation. Although Palomo's counsel asked some questions about Rule 35 procedures, he did not object to the district court's suggestion that the Government file a Rule 35 motion if Palomo ...


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