Filed: Apr. 13, 2005
Latest Update: Feb. 21, 2020
Summary: release term. It, states, [t]he defendant shall submit to one drug test within 15, days of release from imprisonment. Here, both, the oral and written condition improperly delegate authority to the, probation officer, so the fact that our analysis concerns the oral, sentence is of no consequence.
Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1018
UNITED STATES,
Appellee,
v.
DIANA VEGERANO-RODRIGUEZ,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Juan M. Pérez-Giménez, U.S. District Judge]
Before
Torruella, Lipez and Howard,
Circuit Judges.
Raymond Sanchez-Maceira on brief for appellant.
H.S. Garcia, United States Attorney, and Nelson Perez Sosa,
Assistant U.S. Attorney on brief for appellee.
April 13, 2005
Per Curiam. Appellant, Diana Vegerano-Rodriguez, appeals
from the United States District Court for the District of Puerto
Rico's (Perez-Gimenez, J.) denial of her motion for an evidentiary
hearing on the issue of the propriety of the government's motives
in refusing to file a downward departure motion for substantial
assistance pursuant to a plea agreement. She further appeals the
court's imposition of the drug-testing condition on her supervised
release term.
Considering first the denial of an evidentiary hearing,
we find no abuse of discretion. See United States v. Alegria, 192
F.3d 179, 189 (1st Cir. 1999); David v. United States,
134 F.3d
470, 477 (1st Cir. 1998). The government met its burden of
production: it provided facially adequate reasons for its belief
that Vegerano-Rodriguez did not satisfy the terms of the plea
agreement for substantial assistance. See
Alegria, 192 F.3d at
189; United States v. Garcia,
698 F.2d 31, 35 (1st Cir. 1983). The
plea agreement conditioned substantial assistance upon Vegerano-
Rodriguez providing, inter alia, "full, complete, and substantial
cooperation." According to the government's proffer, however, she
did not initially provide all information known to her and only
later told the complete truth when the government made efforts to
extract it from her.
Moreover, the district court correctly concluded
Vegerano-Rodriguez did not meet her burden of making a "substantial
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threshold showing" that the government had an unconstitutional
motive in refusing to file a substantial assistance motion. Wade
v. United States, 504 U.S. 181, 186 (1992);
Alegria, 192 F.3d at
188. In her motion, she largely ignored the issue of whether the
government acted in an unconstitutional manner, putting the bulk of
her effort into proving that she had provided substantial
assistance. See
Wade, 504 U.S. at 186. The few allegations
Vegerano-Rodriguez made that concern the government's
unconstitutional motives state conclusions instead of facts and
support, at most, government carelessness. See
Alegria, 192 F.3d
at 189; United States v. Doe,
170 F.3d 223, 225-26 (1st Cir. 1999).
Considering the drug testing condition, we hold that the
district court improperly delegated its authority. The district
court's sentence included a five-year term of supervised release
with the condition that, "[Vegerano-Rodriguez] shall refrain from
any unlawful use of a controlled substance and submit to one drug
test within fifteen days of release and thereafter, as required by
the probation officer."1 The parties do not dispute that this
1
The written sentence differs from the oral sentence. It
states, "[t]he defendant shall submit to one drug test within 15
days of release from imprisonment. If any such samples detect
substance abuse, the defendant shall participate in a substance
abuse treatment program arranged and approved by the Probation
officer until duly discharged by authorized program personnel with
approval of the Probation officer." Where a district court's oral
expression of its sentencing rationale varies materially from its
subsequent written expression of that rationale, appellate courts
have tended to honor the former at the expense of the latter.
United States v. Cali, 87 F.3d 571, 579 (1st Cir. 1996); United
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condition constitutes an improper delegation of authority to the
probation officer. We agree. In United States v. Melendez-
Santana, 353 F.3d 93, 102-106 (1st Cir. 2003), we held that
virtually identical language violated the "clear Congressional
mandate" that, following the initial drug test within fifteen days
of release, there must be at least two periodic drug tests as
determined by the court. 18 U.S.C. § 3583(d).
Accordingly, we vacate the sentence to the extent it
improperly delegates the district court's authority to determine
the maximum number of drug tests required during the appellant's
supervised release term, and we remand to the district court for
further action consistent with this opinion. We affirm, however,
the district court's denial of Vegerano-Rodriguez's request for an
evidentiary hearing.
So ordered.
States v. Muniz, 49 F.3d 36, 42 n.5 (1st Cir. 1995). Here, both
the oral and written condition improperly delegate authority to the
probation officer, so the fact that our analysis concerns the oral
sentence is of no consequence.
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