§790 Plea Agreements: Advice, Breach, Withdrawal
(U.S.S.G. §6B)
6th Circuit reverses where sentence was outside the advice at guilty plea hearing. (790) At the time of defendant’s guilty plea to possession of a firearm, the district court advised him that it would have to decide between the government’s and defendant’s guidelines calculations. When the presentence report found a guidelines range higher than either recommendation, the district court told defendant that he could withdraw his plea, but he might lose the reduction for acceptance of responsibility at a new sentencing hearing. Defendant chose not to withdraw his plea, and the court sentenced him in accordance with the PSR’s recommendation. On appeal, the Sixth Circuit reversed, ordering defendant to be allowed to plead anew because the court failed to inform him at the time of the plea that it could sentence him irrespective of the parties’ recommendation. U.S. v. Jones, __ F.4th __ (6th Cir. Nov. 16, 2022) No. 21-3636.
9th Circuit says court did not vitiate waiver by saying defendant gave up “most” rights to appeal. (790) Defendant pleaded guilty to drug trafficking pursuant to a plea agreement that contained a waiver of her right to appeal. At the plea hearing, in response to defendant’s question about the impact of her lawyer’s disbarment, the court noted that defendant had waived “most” of her rights to appeal in the plea agreement. With new counsel defendant appealed, arguing that district court’s comments had vitiated the waiver of appeal. The Ninth Circuit rejected the argument, finding that the district court did not unambiguously state that defendant had the right to appeal. U.S. v. Nishida, __ F.4th __ (9th Cir. Nov. 17, 2022) No. 21-10070.
2d Circuit says appeal waiver barred appeal of Rule 35(a) motion to correct sentence. (115)(790) In 2019, defendant pleaded guilty to providing material support to a terrorist organization. The plea agreement waived appeal if he was sentenced to 150 months or less, which he as. Nevertheless, shortly after sentencing, he filed a Fed. R. Crim. P. 35(a) motion to correct his sentence to 14 days. When the district court denied his motion, he appealed. The Second Circuit dismissed the appeal, ruling that it was barred by his waiver of appeal. U.S. v. Rakhmatov, __ F.4th __ (2d Cir. Nov. 17, 2022) No. 21-151.
5th Circuit finds appeal waiver extends to restitution. (610)(790) Defendant pleaded guilty pursuant to a plea agreement that contained a waiver of appeal “on any ground.” He tried to appeal his sentence and restitution obligation. The Fifth Circuit found that defendant had waived his right to appeal, including his right to appeal any restitution imposed by the district court. U.S. v. Meredith, __ F.4th __ (5th Cir. Nov. 9, 2022) No. 21-50487.
3d Circuit enforces waiver of appeal in fraud case where defendant understood possible sentence. (790) Defendant pleaded guilty to violations of the Computer Fraud and Abuse Act pursuant to a plea agreement that contained an appeal waiver. He argued on appeal that he did not know that the loss amount under the guidelines would be as high as it was and he should be allowed to withdraw his plea. The Third Circuit found that defendant knew of the prison term he faced, noting that the plea agreement specifically allowed him to argue for a lower loss amount at sentencing. U.S. v. Agarwal, __ F.4th __ (3d Cir. Feb. 3, 2022) No. 20-2890.
7th Circuit enforces appellate waiver even though defendant breached plea agreement. (790) Defendant pleaded guilty to fraud pursuant to a plea agreement that contained a waiver of appeal. Defendant breached the plea agreement, and the district court—in an abundance of caution—advised defendant of his right to appeal. Defendant appealed his sentence, but the Seventh Circuit dismissed it, ruling that defendant’s waiver of appeal foreclosed his appeal. U.S. v. Mboule, __ F.4th __ (7th Cir. Jan. 14, 2022) No. 20-3225.
1st Circuit upholds waiver of appeal in plea agreement despite claim that it was not explained. (790) Defendant entered into a plea agreement that waived his right to appeal. On appeal, he argued that the district court violated Fed. R. Crim. P. 11(b)(1)(N) by failing to explain the plea agreement to him. Reviewing for plain error, the First Circuit concluded that the district court had ensured that defendant and his counsel had reviewed the agreement “word for word,” and that defendant freely consented to the agreement. U.S. v. Rodriguez-Monserrate, __ F.4th __ (1st Cir. Dec. 30, 2021) No. 20-1905.
9th Circuit, in amended opinion, enforces waiver of appeal even though sentence was no longer valid. (790) Defendant was sentenced to 14 years for conspiracy to commit Hobbs Act robbery and carrying a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c). Defendant’s plea agreement contained a waiver of his right to appeal. After sentencing, the Supreme Court held in U.S. v. Davis, 139 S.Ct. 2319 (2019), that conspiracy to commit Hobbs Act robbery is not a “crime of violence.” Defendant moved to vacate his plea to the § 924(c) offense. In an amended opinion. the Ninth Circuit enforced the appellate waiver, finding that its plain terms applied and refusing to apply the “illegal sentence” exception to the rule enforcing appellate waivers. U.S. v. Goodall, __ F.4th __ (9th Cir. Dec. 28, 2021) No. 18-10004 (amending 15 F.4th 987 (Oct. 13, 2021)).
2d Circuit finds mistaken colloquy about supervised release did not justify plea withdrawal. (580)(790) At defendant’s guilty plea colloquy for drug trafficking, the district court erroneously said the mandatory supervised release term was five years, when in fact it was ten years. The PSR correctly said the minimum term was ten years, and the defendant did not object to the PSR. Nevertheless, sentencing was postponed to allow defendant to move to withdraw his plea. In the meantime, the First Step Act was passed, making the effect of the court’s error harmless. When defendant finally moved to withdraw his plea, the district court denied the motion on the ground that its error was harmless, and the Second Circuit agreed. U.S. v, Freeman, __ F.4th __ (2d Cir. Nov. 4, 2021) No. 19-2432.
2d Circuit applies appellate waiver to appeal from resentencing. (790) In 2009, defendant pleaded guilty to using a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c). In the plea agreement, defendant waived his right to appeal. He later filed a 28 U.S.C. § 2255 motion to vacate his § 924(c) conviction on the ground that his underlying offense was no longer a “crime of violence” after U.S. v. Davis, 139 S.Ct. 2319 (2019), and the district court resentenced him as a career offender. Defendant attempted to appeal from this new sentence, but the government moved to dismiss the appeal, based on the waiver in defendant’s plea agreement. The Second Circuit dismissed the appeal, finding the waiver of appeal applied even to resentencing. U.S. v. Borden, __ F.4th __ (2d Cir. Oct. 26, 2021) No. 19-4316.
9th Circuit enforces waiver of appeal even though Hobbs Act sentence no longer valid after Davis. (224) (330)(790)(880) Defendant pleaded guilty to conspiracy to commit Hobbs Act robbery and brandishing a firearm during a “crime of violence,” in violation of 18 U.S.C. § 924(c), and was sentenced to 14 years. Defendant filed a notice of appeal even though his plea agreement waived the right to appeal. While his appeal was pending, the Supreme Court in U.S. v. Davis, 139 S.Ct. 2319 (2019), held that conspiracy to commit Hobbs Act robbery is not a “crime of violence.” Nevertheless, the Ninth Circuit enforced the appellate waiver, refusing to expand the “illegal sentence” exception adopted in U.S. v. Torres, 828 F.3d 1113, 1124–25 (9th Cir. 2016), to include an “illegal conviction” exception to waivers of appeal. The appeal was dismissed. U.S. v. Goodall, __ F.4th __ (9th Cir. Oct 13, 2021) No. 18-10004.
8th Circuit finds plea agreement did not waive appeal of supervised release terms. (790) Defendant pleaded guilty to distributing child pornography pursuant to a plea agreement that preserved his right to appeal any sentencing error to which he objected in the district court. The Eighth Circuit held that this exception to the plea agreement allowed an appeal of defendant’s special conditions of supervised release, not just his term of imprisonment. U.S. v. Adams, __ F.4th __ (8th Cir. Sept. 14, 2021) No. 20-2351.
5th Circuit finds plea agreement waived right to appeal. (790) Defendant pleaded guilty to drug trafficking pursuant to a plea agreement that waived her right to appeal any sentence imposed pursuant to the plea agreement. Defendant sought to appeal a provision contemplated by the plea agreement. The Fifth Circuit dismissed the appeal based on the waiver in the plea agreement. U.S. v. Butler, __ F.4th __ (5th Cir. Aug. 10, 2021) No. 19-40095.
6th Circuit finds government breached plea agreement by suggesting variance from guidelines. (790) Defendant pleaded guilty to possession of a firearm by a felon in a plea agreement that stated that the government would not “suggest in any way” that a variance was appropriate. At sentencing, in discussing a variance, the government said that it probably would have made a different recommendation if it had known that defendant’s prior convictions involved shooting at family members. The Sixth Circuit found that the government breached the plea agreement by bringing “a variance forward by implication.” U.S. v. Warren, __ F.4th __ (6th Cir. Aug. 9, 2021) No. 20-3045.
8th Circuit finds no breach despite government’s reliance on restitution statute not in plea agreement. (610)(790) Defendant pleaded guilty to interstate stalking in a plea agreement that stated that the government would seek restitution under the Mandatory Victims Restitution Act. The government also sought restitution under the Violence Against Women Act. The Eighth Circuit found that the government had not breached the plea agreement because the agreement did not state that MVRA was the only basis for restitution. U.S. v. Thomason, __ F.4th __ (8th Cir. Aug. 5, 2021) No. 19-2537.
8th Circuit finds no breach despite government’s failure to recommend agreed sentence. (790) Defendant pleaded guilty to abusive sexual contact with his minor daughter pursuant to a plea agreement that stated that the government would recommend a sentence of five years, half the guidelines range. At sentencing, the district court considered a statement from the victim that recommended a sentence above five years, and the government urged the court to consider the victim’s statement. The government did not recommend a five-year sentence because the district court had stated the government’s recommendation twice. The Eighth Circuit found no breach of the plea agreement despite the government’s urging the district court to consider the victim’s statement. U.S. v. Helper, __ F.4th __ (8th Cir. Aug. 2, 2021) No. 20-1905.
9th Circuit finds plea agreement waived appeal despite disputed loss amount. (790) Defendant pleaded guilty to health care fraud pursuant to a plea agreement that waived his right to appeal any sentence above guidelines level 25. At sentencing, the district court arrived at a loss figure and set defendant’s offense level at 25. Defendant sought to appeal, claiming that the district court did not give him a fair opportunity to litigate the loss amount. The Ninth Circuit enforced the waiver, noting that the level 25 agreement reflected the parties’ disagreement about the loss calculation. U.S. v. Minasyon, __ F.3d __ (9th Cir. July 9, 2021) No. 19-50185.
9th Circuit finds government’s arguments did not breach plea agreement. (790) Defendant pleaded guilty to health care fraud in a plea agreement that contained an appeal waiver. Defendant argued that the government breached the plea agreement at sentencing by attempting to influence the district court to give a higher sentence. The Ninth Circuit found no evidence of breach because the government had not waived the right to argue for a higher loss calculation than defendant, and the arguments that defendant cited could assist the district court in arriving at a loss figure. U.S. v. Minasyon, __ F.3d __ (9th Cir. July 9, 2021) No. 19-50185.
4th Circuit says plea agreement barred appeal of restitution order. (610)(790) Defendant pleaded guilty to fraud pursuant to a plea agreement that waived the right to appeal any sentence within the statutory maximum. Defendant sought to appeal the district court’s restitution order. The Fourth Circuit noted that the restitution order was within the scope of the district court’s authority, and accordingly, the waiver required dismissal of the appeal. U.S. v. Boutcher, __ F.3d __ (4th Cir. May 26, 2021) No. 20-4248.
6th Circuit finds plea agreement waived right to seek reduction in restitution. (610)(790) In 2013, defendant pleaded guilty to fraud offenses pursuant to a plea agreement that contained a waiver of appeal. At sentencing, the district court ordered defendant to pay more than $800,000 in restitution. After completing his prison term, defendant filed a motion to reduce his restitution obligation. The district court denied the motion, ruling that it had no authority to alter the restitution order. The Sixth Circuit affirmed, finding defendant waived his right to seek a reduction in restitution. U.S. v. Hack, __ F.3d __ (6th Cir. June 3, 2021) No. 19-6278.
6th Circuit finds plea agreement barred appeal of sentence. (790) Defendant pleaded guilty to attempting to provide material support to a foreign terrorist organization (and other offenses) pursuant to a plea agreement that provided for a sentence of 168 months and barred defendant from appealing any sentence 168 months or lower. He was sentenced to 168 months, and the Sixth Circuit found the plea agreement valid and enforced it, barring defendant’s appeal. U.S. v. Pitts, __ F.3d __ (6th Cir. May 14, 2021) No. 20-3238.
7th Circuit finds plea agreement waived right to file compassionate release motion. (150)(790) Defendant pleaded guilty to soliciting an obscene depiction of a minor pursuant to a plea agreement that waived defendant’s right to seek any modification of his sentence. A year later, defendant filed a compassionate release motion, arguing that his medical conditions put him at higher risk for covid-19. The district court denied the motion, finding that defendant’s plea agreement waived the right to file a compassionate release motion. The Seventh Circuit affirmed on appeal. U.S. v. Bridgewater, __ F.3d __ (7th Cir. Apr. 28, 2021) No. 20-2413.
D.C. Circuit finds government breached plea agreement by arguing defendant was “organizer.” (790) Defendant pleaded guilty to drug trafficking pursuant to a plea agreement that allowed him to argue that he was eligible for the safety valve and barred the government from seeking a increase for role-in-the-offense under § 3B1.1. At sentencing, the government opposed defendant’s safety valve argument by asserting that defendant was an organizer of criminal activity and therefore was not eligible for the safety valve under 18 U.S.C. § 3553(f). The D.C. Circuit found the plea agreement was at least “ambiguous” and had to be construed against the government. Accordingly, the government breached the plea agreement by arguing that defendant was an organizer or leader of criminal activity. U.S. v. Moreno-Membache, __ F.3d __ (D.C. Cir. Apr. 27, 2021) No. 19-3051.
1st Circuit finds no breach of plea agreement where government persisted in recommendation. (790) In the plea agreement, the government promised to recommend a sentence at the bottom of the guidelines range. The government’s sentencing memoranda complied with this obligation, and at sentencing the government stated that the district court should not vary downward. Nevertheless, the district court varied upward from the guideline range. The First Circuit found no breach of the plea agreement because the government persisted in arguing for a guidelines sentence even after it became clear that the court was not going to impose one. U.S. v. Farmer, __ F.3d __ (1st Cir. Feb. 16, 2021) No. 19-1603.
4th Circuit enforces waiver barring appeal of any sentence less than life. (790) Defendant pleaded guilty to coercion of a minor to engage in sexual conduct. In the plea agreement, he waived his right to appeal any sentence in excess of guidelines range 43. That range is “life.” The district court sentenced defendant to 264 months—less than a life sentence. Defendant appealed his sentence, but the Fourth Circuit enforced the waiver and dismissed the appeal. U.S. v. McGrath, __ F.3d __ (4th Cir. Nov. 30, 2020) No. 19-4277.
1st Circuit says government’s plea agreement promises do not apply on appeal. (790) Defendant pleaded guilty to production of child pornography, and the plea agreement obligated the government to argue for a sentence of no more than 235 months. The district court sentenced him to 300 months, a downward variance. On appeal, the government defended the 300-month sentence. Defendant argued that defending the 300-month sentence breached the plea agreement. The First Circuit found there was no breach because the government’s promises in the plea agreement do not apply on appeal. U.S. v. Jurado-Nazario, __ F.3d __ (1st Cir. Oct. 30, 2020) No. 18-1679.
5th Circuit says plea agreement did not limit sentence for violating second term of supervised release. (790) (800) Defendant’s plea agreement barred appeal if he was sentenced to 60 months in custody and 60 months supervised release. After serving his 60-month sentence, he violated his supervised release and was sentenced to 37 months. Upon release, he committed a new crime and was sentenced to a second term of 37 months. For the first time on appeal, defendant argued that the total of 74 months violated his plea agreement, requiring resentencing to only 23 months. The Fifth Circuit affirmed his 37-month sentence, ruling that the plea agreement did not limit his sentence for violating a second term of supervised release. U.S. v. Napper, __ F.3d __ (5th Cir. Oct. 8, 2020) No. 19-18442.
11th Circuit enforces appeal waiver despite claim that guidelines were miscalculated. (790) Defendant pleaded guilty pursuant to a plea agreement that waived his right to appeal unless the district court exceeded the sentence required by the guidelines. The district court sentenced defendant within the guidelines range that it found. Defendant appealed, arguing that the district court miscalculated the guidelines. The Eleventh Circuit enforced the appeal waiver and dismissed the appeal. U.S. v. Boyd, __ F.3d __ (11th Cir. Sept. 16, 2020) No. 18-11063.
10th Circuit finds lack of cooperation excused government’s promise in plea agreement. (790) Defendant pleaded guilty to fraud involving a company he created pursuant to a plea agreement that waived his right to appeal his sentence. After his plea but before sentencing, defendant contacted a potential witness to try to license the fraudulent company through the witness’s company. As a result, the government recommended only a 15 percent variance rather than the 20 percent variance that the plea agreement said it “expected” to file based on defendant’s “full” cooperation. Defendant sought to appeal his sentence, but the Tenth Circuit enforced his waiver, holding that the government had not breached the agreement by recommending a 15 percent as opposed to a 20 percent variance. U.S. v. Rubbo, __ F.3d __ (10th Cir. Jan. 27, 2020) No. 18-1342.
4th Circuit, en banc, says plea colloquy must inform defendant of ACCA sentence. (540)(790) At defendant’s change-of-plea hearing for possession of a firearm by a felon, the government said that defendant faced a 10-year penalty. At sentencing, defendant received the mandatory 15-year minimum sentence required by the Armed Career Criminal Act for defendants convicted of possession of a firearm by a felon who have three prior convictions for a “violent felony.” The Fourth Circuit, en banc, found that the district court committed plain error by failing to tell defendant at the change-of-plea colloquy that he faced a 15-year mandatory minimum. The case was remanded to allow defendant to plead anew. U.S. v. Lockhart, __ F.3d __ (4th Cir. Jan. 10, 2020) No. 16-4441.
2d Circuit finds government waived appeal waiver by consenting to remand on closely-related issue. (790) (850) Defendant pleaded guilty pursuant to a plea agreement that waived his right to appeal. On appeal, the government consented to a remand because the district court had misunderstood its discretion to run the sentence concurrently to a not-yet-imposed state sentence. Defendant also argued on appeal that the court misunderstood its authority to reduce his sentence below the mandatory minimum to account for time served on another state sentence. The government sought to enforce defendant’s appeal waiver on this issue. The Second Circuit found that by consenting to a remand on a closely-related issue, the government had waived its right to rely on the defendant’s waiver of appeal. U.S. v. Ojeda, __ F.3d __ (2d Cir. Jan. 9, 2020) No. 18-1839.
5th Circuit uses plain error review even though defendant “noted” proffer information could not be used. (790)(870) On appeal, defendant argued that the use of his proffer to set his offense level violated his plea agreement. At sentencing, defendant “noted” that the proffer information could be used to rebut defendant’s evidence, but he did not explicitly assert that the government’s use of that information constituted a breach of the plea agreement. The Fifth Circuit held that defendant’s remarks at sentencing were not sufficiently specific to put the district court on notice of his claim, so the court applied plain error review. U.S. v. Tapia, __ F.3d __ (5th Cir. Jan. 6, 2020) No. 18-10161.
6th Circuit finds government breached plea agreement despite retraction. (790) Defendant pleaded guilty to firearms violations pursuant to a plea agreement that obligated the government to recommend a sentence “in accordance with the computations” in the plea agreement. The plea agreement recommended a sentence of 21 to 27 months. The presentence report recommended a four-level enhancement and a sentence of 30 to 37 months. At sentencing, the government asked the court to impose a sentence of 30 to 37 months, but later unsuccessfully objected to the four-level enhancement. The district court overruled the government’s objection and sentenced defendant to 35 months. The Sixth Circuit held that the government had breached the plea agreement despite the government’s acknowledgement of its misstatement. U.S. v. Ligon, __ F.3d __ (6th Cir. Sept. 11, 2019) No. 18-4234.
9th Circuit says plea waiver did not bar appeal of claimed illegal sentence. (790) Defendant pleaded guilty to production of child pornography, in violation of 18 U.S.C. § 2251, pursuant to a plea agreement that waived his right to appeal. Section 2251 provides for mandatory minimums and maximums depending on defendant’s prior convictions. Defendant received a sentence of life based on the district court’s finding that he had at least two prior convictions “relating” to the sexual exploitation of children. On appeal, defendant argued that this sentence was illegal because his prior convictions did not “relate” to the sexual exploitation of children. The Ninth Circuit held that the appeal waiver in his plea agreement did not waive his right to challenge what he claimed was an illegal sentence. U.S. v. Schopp, __ F.3d __ (9th Cir. Sept. 16, 2019) No. 16-30185.
3d Circuit says appeal waiver barred appeal of motion to terminate supervised release. (790)(850) Defendant pleaded guilty to drug trafficking pursuant to a plea agreement that waived any appeal of his sentence if it was below the guidelines range. The district court sentenced defendant to a term of imprisonment below the guidelines range and a statutorily mandated term of supervised release. Defendant served his prison term and 32 months of his 60-month term of supervised release. Defendant then filed a motion for early termination of his supervised release. The district court denied the motion, and defendant appealed. The Third Circuit found that the appeal waiver in defendant’s plea agreement barred any challenge to his sentence, including supervised release. U.S. v. Damon, __ F.3d __ (3d Cir. Aug. 6, 2019) No. 18-2444.
8th Circuit finds stipulations in plea agreement waived appeal based on later guideline changes. (790)(850) In April 2015, defendant pleaded guilty to fraud offenses pursuant to a plea agreement in which he stipulated to a loss amount and a sophisticated means enhancement. In November 2015, the Sentencing Commission amended the definition of “intended loss” in the commentary to § 2B1.1 and the “sophisticated means” enhancement in § 2B1.1(b)(10)(C) in a manner that arguably lowered defendant’s offense level. Defendant absconded before his sentencing. When recaptured in 2017, defendant argued that he should obtain the benefit of the Commission’s amendments to the fraud guideline. The Eighth Circuit held that defendant waived his arguments by stipulating to the loss and sophisticated means adjustments in his plea agreement. U.S. v. Kugmeh, __ F.3d __ (8th Cir. Aug. 8, 2019) No. 18-1145.
8th Circuit finds waiver of appeal ambiguous, so it did not bar appeal. (790)(850) Defendant pleaded guilty to two counts of sexual exploitation of a minor pursuant to a plea agreement that barred any appeal “up to and including” the 30-year sentence recommended in the plea agreement. The district court sentenced defendant to two consecutive 30-year terms. The Eighth Circuit found the plea agreement ambiguous. So it did not bar an appeal of defendant’s 60-year sentence. U.S. v. Williams, __ F.3d __ (8th Cir. Aug. 16, 2019) No. 18-2422.
8th Circuit allows appeal of unauthorized restitution, despite appeal waiver. (610)(790) Defendant pleaded guilty to receipt of child pornography pursuant to a plea agreement that waived his right to appeal any sentence below the statutory maximum. Defendant received a sentence below the statutory maximum. The Eighth Circuit enforced the appeal waiver to the extent it barred any review of defendant’s prison sentence. However, because the district court ordered defendant to pay a restitution amount that was not authorized by statute, the court considered defendant’s appeal to the extent it challenged the restitution order. U.S. v. Thomas, __ F.3d __ (8th Cir. Aug. 5, 2019) No. 18-2412.
5th Circuit allows challenge to restitution despite waiver of appeal of restitution. (610)(790) Defendant pleaded guilty to a child pornography offense pursuant to a plea agreement that waived his right to appeal any part of his sentence, including any restitution order. At sentencing, the district court sentenced him to a period of incarceration and $58,415 in restitution. On appeal, he sought to contest his restitution obligation. The Fifth Circuit held that an appeal of a restitution order is an appeal of a sentence exceeding the statutory maximum and is therefore exempt from an appeal waiver. U.S. v. Leal, __ F.3d __ (5th Cir. Aug. 5, 2019) No. 16-11330.
11th Circuit upholds defendant’s waiver of appeal despite government’s objection that sentence was unreasonable. (710)(790)(850) Defendant pleaded guilty to wire fraud pursuant to a plea agreement that waived his right to appeal his sentence while preserving the parties’ right to make recommendations, and stating that the district court would ultimately decide what sentence to impose. At sentencing, the district court rejected the government’s substantial assistance motion, and departed upward to sentence above the guidelines range. The government objected that the sentence was substantively unreasonable. The Eleventh Circuit held that defendant’s appeal waiver applied regardless of the government’s objection at sentencing. U.S. v. Lewis, __ F.3d __ (11th Cir. June 26, 2019) No. 17-14571.
8th Circuit enforces appeal waiver where defendant only challenged guidelines calculation. (790) Defendant pleaded guilty pursuant to a plea agreement in which he waived his right to appeal if the court sentenced him within the guidelines range. The court sentenced him at the top end of the 100- to 120-month range. Defendant sought to appeal, challenging the court’s calculation of the guidelines range. The Eighth Circuit dismissed the appeal, holding that the waiver applied to challenges to the guidelines calculation. Defendant also argued that his waiver was not knowing and voluntary because the court did not explain the consequences of forfeiting an appeal when certain enhancements remained in dispute. The panel found no error. U.S. v. Guice, __ F.3d __ (8th Cir June 4, 2019) No. 181327.
1st Circuit finds counsel should have filed notice of appeal even though not asked. (790) Defendant pleaded guilty to a illegal entry after deportation. He waived his right to appeal if he was sentenced within the sentencing recommendation in the plea agreement, and indeed, he was sentenced within those recommendations. Counsel did not file a timely notice of appeal. In a motion filed under 28 U.S.C. § 2255, defendant claimed that he told his counsel that he wished to appeal. Although a magistrate judge found that defendant did not instruct his counsel to file a notice of appeal, the magistrate judge found that he had manifestly demonstrated an interest in appealing. The First Circuit held that counsel had engaged in ineffective assistance of counsel by failing to file a notice of appeal. Rojas Medina v. U.S. __ F.3d __ (1st Cir. May 16, 2019) No. 18-1150.
1st Circuit finds appeal waiver did not bar appeal of breach claim. (790) Defendant pleaded guilty to sex trafficking offenses pursuant to a plea agreement that waived his right to appeal his conviction and any sentence within the range to which the parties agreed. The plea agreement also preserved defendant’s ability to argue on appeal that the prosecutor had engaged in misconduct. Defendant received a sentence within the agreed range, but sought to appeal, claiming a breach of the plea agreement. The First Circuit held that defendant’s claim that there was a breach of the plea agreement fell within the plea waiver’s exception that allowed defendant to appeal misconduct by the prosecutor. U.S. v. Davis, __ F.3d __ (1st Cir. May 6, 2019) No. 17-2100.
1st Circuit finds no breach of plea agreement despite statements from uncharged victims. (790) Defendant pleaded guilty to three counts of sex trafficking pursuant to a plea agreement. The plea agreement stated that the three counts to which defendant pleaded guilty would not be grouped for purposes of the guidelines and that the agreement did not affect the government’s obligation to provide the district court with information about defendant’s case. At sentencing, the government presented statements from one victim who was not included in any charged count and one victim in a dismissed count. The First Circuit held that the government had not breached the plea agreement by presenting the victim statements. U.S. v. Davis, __ F.3d __ (1st Cir. May 6, 2019) No. 17-2100.
1st Circuit says providing information to court did not breach plea agreement. (790) Defendant pleaded guilty to sex trafficking pursuant to a plea agreement that preserved the government’s right to provide the district court and Probation with “accurate and complete information” regarding defendant’s case. The First Circuit held that the government had not breached the plea agreement by providing information to Probation or by arguing for the highest sentence set forth in the plea agreement. The court stated that “the government’s actions and advocacy were not impermissibly equivocal, apologetic, or begrudging,” even though the government stated that the plea agreement contained “representations” based on what the government knew at the time. U.S. v. Davis, __ F.3d __ (1st Cir. May 6, 2019) No. 17-2100.
1st Circuit says government explanation of offense at sentencing did not breach agreement. (790) Defendant pleaded guilty to transporting a minor to engage in criminal sexual activity pursuant to a plea agreement that barred any appeal if defendant were sentenced within the guidelines range set forth in the plea agreement. The plea agreement stated that the government would recommend a sentence of 168 months. At sentencing, the government recommended a sentence of 168 months, but the district court set defendant’s offense level substantially higher than set forth in the plea agreement and sentenced defendant to 240 months, above the guidelines range set forth in the plea agreement. The First Circuit found that the government had not violated the agreement by explaining to the district court that it had agreed to the deal that defendant received to spare his victim from testifying. The court also held that the government’s description of defendant’s offense formed part of its obligation to supply the district court with accurate facts. U.S. v. Colón-Rosario, __ F.3d __ (1st Cir. Apr. 19, 2019) No. 17-2122.
2d Circuit says government breached plea agreement by arguing for higher range. (790) Defendant pleaded guilty to conspiracy to distribute crack pursuant to a plea agreement that estimated defendant’s guidelines range at 108 to 135 months. The plea agreement stated that the guidelines range was based on information known to the government but that the range was not binding on the government. When defendant was sentenced, the government argued for a much higher sentence, and the district court sentenced him to 360 months. The Second Circuit held that the government had breached the plea agreement by violating defendant’s reasonable expectations. The court stressed that the basis on which the government argued for an increase in defendant’s sentence was known to the government at the time of the plea. The court also found that defendant may have been on notice that the guidelines estimate would change, but he could not have been on notice about the extent of the change. U.S. v. Wilson, __ F.3d __ (2d Cir. Apr. 4, 2019) No. 17-1896.
2d Circuit says remedy for breach of plea agreement is specific performance. (790) The Second Circuit held that the government breached the plea agreement by arguing for a sentence much higher than the range in the agreement. The court remanded for specific performance in front of a different district judge. Specific performance is the appropriate remedy when the taint of the violation can be cured by resentencing before a different district judge. By contrast, allowing defendant to withdraw his plea carried the risk that he would be convicted at trial and receive a higher sentence. U.S. v. Wilson, __ F.3d __ (2d Cir. Apr. 4, 2019) No. 17-1896.
8th Circuit finds no breach of plea agreement regarding obstruction and acceptance credit. (790) Defendant pleaded guilty to receiving child pornography pursuant to a plea agreement that stated that the government reserved the right to oppose a reduction for acceptance of responsibility if defendant obstructed justice. In objections to the presentence report, the government recommended in favor of a reduction for acceptance, but stated that the court could deny the reduction. After being charged, defendant possessed a cell phone that was inconsistent with conditions of his pretrial release. At sentencing, the government argued against a reduction for acceptance of responsibility and for an obstruction increase. The Eighth Circuit found that neither of these arguments breached the plea agreement. U.S. v. Beattie, __ F.3d __ (8th Cir. Apr. 1, 2019) No. 18-2197.
D.C. Circuit enforces appeal waiver in plea agreement. (790) Defendant pleaded guilty to bank robbery pursuant to a plea agreement that waived his right to appeal any sentence within the guidelines. The district court sentenced defendant to the top of the guidelines range. On appeal, defendant claimed that the district court had abused its discretion by relying on defendant’s prior weapons convictions in imposing sentence. The D.C. Circuit held that this claim was foreclosed by defendant’s appeal waiver. U.S. v. Smoot, __ F.3d __ (D.C. Cir. Mar. 19, 2019) No. 18-3007.
1st Circuit finds plea agreement appeal waiver applied to sentence. (790) Defendant pleaded guilty to possession of a firearm by a felon pursuant to a plea agreement that waived his right to appeal a sentence greater than the plea agreement. The plea agreement stated that defendant could argue for a sentence as low as 96 months and the government could argue for a sentence up to 120 months. The district court imposed a 120-month sentence. The First Circuit held that defendant’s waiver barred any appeal of his sentence. The court rejected defendant’s argument that the appeal waiver did not apply because he agreed only to a sentence of 96 months. U.S. v. Cruz-Olavarria, __ F.3d __ (1st Cir. Mar. 27, 2019) No. 17-1761.
5th Circuit upholds appeal waiver despite later Johnson “residual clause” claim. (790) Defendant pleaded guilty to possession of a firearm by a convicted felon pursuant to a plea agreement that waived “any and all rights to appeal the conviction in this case, on any grounds whatsoever.” Defendant appealed, challenging his status under the Armed Career Criminal Act, 18 U.S.C. § 924(e), and claiming that he would not have pleaded guilty if he had known that he had a basis to challenge the ACCA finding based on the later decision in Johnson v. U.S., 135 S.Ct. 2551 (2015). The Fifth Circuit enforced the appeal waiver, finding defendant’s plea agreement was knowing and voluntary. U.S. v. Kelly, __ F.3d __ (5th Cir. Feb. 8, 2019) No. 17-60133.
8th Circuit allows appeal of supervised release conditions despite appellate waiver. (750)(790) Defendant pleaded guilty pursuant to a plea agreement that barred him from appealing any sentence not set out in the plea agreement. At sentencing, the district court imposed special supervised release conditions that barred defendant from consuming any alcoholic beverages and set a 10 p.m. curfew. Those conditions were not set forth in the plea agreement. The Eighth Circuit held that the plea agreement did not bar defendant from an appeal that challenged these special conditions of supervised release. U.S. v. Bell. __ F.3d __ (8th Cir. Feb. 12, 2019) No. 16-3588.
8th Circuit says alleged breach of “spirit” of plea agreement was not a breach. (790) Defendant pleaded guilty pursuant to a plea agreement that waived his right to appeal. At sentencing, the government, consistent with the agreement, recommended a sentence within the guidelines. Defendant appealed, claiming his sentence was substantively unreasonable. He argued that the government breached the “spirit” of the plea agreement by “strongly suggesting the district court should not follow [the government’s] formal recommendation.” The Fifth Circuit found no breach of the plea agreement. It also found that any purported breach of the plea agreement was not a but-for cause of the district court’s sentencing decision. U.S. v. Raifsnider, __ F.3d __ (8th Cir. Feb. 14, 2019) No. 18-1212.
4th Circuit finds government breached plea agreement by urging higher sentence than agreed. (790) Defendant pleaded guilty to distributing methamphetamine pursuant to a plea agreement that stated that the government would recommend a sentence based on less than five grams of a substance containing methamphetamine. That amount resulted in a sentencing range of 10 to 16 months. Before sentencing, the government received a lab report that showed that defendant had trafficked in actual methamphetamine and his sentencing range was 30 to 37 months. The government shared the lab report with Probation and advocated for a sentence within the 30 to 37-month guidelines range. The district court sentenced defendant to 30 months. The Fourth Circuit held that sharing the lab report with Probation did not breach the plea agreement, but the government did breach the agreement by advocating for a sentence of 30 to 37 months. U.S. v. Edgell, __ F.3d __ (4th Cir. Jan. 25, 2019) No. 17-4432.
8th Circuit enforces waiver of appeal even though court varied upward from plea agreement. (790)(850) Defendant pleaded guilty to aiding and abetting second-degree murder, in violation of 18 U.S.C. §§ 1111 and 1152. The plea agreement recommended a sentence of 292 to 365 months, but stated that the district court was not bound by the recommendation. It also contained a waiver of defendant’s right to appeal. The presentence report said the guidelines range was 360 months to life. The government “adopt[ed]” the PSR and joined defendant’s recommendation for a variance so the court could sentence within the recommended range. Nevertheless, the district court sentenced defendant to 480 months. The Eighth Circuit found no breach of the plea agreement, noting that the government had repeatedly requested a sentence within the range in the plea agreement. The court therefore enforced the appeal waiver. U.S. v. St. Pierre, __ F.3d __ (8th Cir. Jan. 11, 2019) No. 17-3657.
8th Circuit enforces waiver of appeal in plea agreement. (790) Defendant pleaded guilty to drug trafficking pursuant to a plea agreement that contained a waiver of her appellate rights. The plea agreement also provided that any new information that defendant provided about her own criminal conduct would not be used to calculate her guidelines sentencing range. On appeal, defendant argued that the government had breached the plea agreement by providing defendant’s self-incriminating statements to the probation office to calculate her guidelines range. The Eighth Circuit enforced the appellate waiver, finding that defendant had not identified which, if any, of her proffered statements the government had provided to probation. U.S. v. Ackerley, __ F.3d __ (8th Cir. Dec. 17, 2018) No. 16-4273.
1st Circuit upholds waiver of appeal despite claim of miscarriage of justice. (790)(850) Defendant pleaded guilty to drug-trafficking pursuant to a plea agreement that waived appeal if the base offense level was between 26 and 30. At sentencing, the district court set defendant’s offense level at 30, but defendant appealed, arguing that this was an egregious case involving a miscarriage of justice. Reviewing for plain error, the First Circuit held that the waiver barred defendant’s appeal, including any challenge to sentencing enhancements and supervised release conditions. U.S. v. Morillo, __ F.3d __ (1st Cir. Dec. 4, 2018) No. 17-1506.
2d Circuit rejects appeal waiver because defendant obtained no benefit. (790)(850) Defendant pleaded guilty to conspiracy to provide material support to a terrorist organization, in violation of 18 U.S.C. § 2339B(a)(1). His plea agreement waived the right to appeal any sentence less than or equal to the statutory maximum of 240 months. Defendant received a 240-month sentence. The Second Circuit found that defendant’s waiver was unsupported by consideration because he received no benefit beyond what he would have obtained by pleading guilty without an agreement. Defendant pleaded guilty to the only count charged in the indictment and any reductions to which the government agreed “had no practical impact,” because even with these reductions, the guidelines sentence exceeded the statutory maximum. U.S. v. Lutchman, __ F.3d __ (2d Cir. Dec. 6, 2018) No. 17-291.
7th Circuit says government did not breach plea agreement by arguing for court’s range. (790) Defendant pleaded guilty to possession of child pornography under an agreement contemplating an offense level of 31. Under the agreement, the government agreed to recommend a sentence within the guideline range “as determined by the court.” At sentencing, the district court found that defendant’s offense level was 33, so the government argued for a sentence within that range, and the district court imposed a sentence at the low end of offense level 33. The Seventh Circuit found that the government did not breach the plea agreement by arguing for a sentence within the guidelines range as determined by the district court. U.S. v. Taylor, __ F.3d __ (7th Cir. Dec. 3, 2018) No. 18-1545.
8th Circuit says misunderstanding guidelines is not a reason to withdraw plea. (790) Defendant initially pleaded guilty to drug-trafficking offenses but sought to withdraw his guilty plea because he disagreed with the recommended sentencing enhancements in the presentence report. The district court denied the motion to withdraw, and the Eighth Circuit affirmed. The court of appeals held that a misunderstanding of how the guidelines will apply to defendant’s case is not a “fair and just reason” justifying withdrawal of a guilty plea. U.S. v. Escobar, __ F.3d __ (8th Cir. Nov. 26, 2018) No. 17-1014.
8th Circuit says appeal waiver did not waive challenge to restitution. (610)(790)(850) Defendant pleaded guilty to carjacking and firearms offenses pursuant to a plea agreement that waived his right to appeal his conviction and sentence. Nevertheless, defendant appealed, arguing that the district court erred in calculating his criminal history and in imposing restitution. The Eighth Circuit dismissed defendant’s attempt to challenge his criminal history, but held that his waiver of appeal did not bar him from pursuing his appeal of the restitution order. U.S. v. Bagley, __ F.3d __ (8th Cir. Nov. 6, 2018) No. 17-2382.
7th Circuit finds plea agreement waived challenge to special assessment. (630)(790) Defendant pleaded guilty to possessing child pornography. In the plea agreement, defendant waived his right to appeal “the sentence imposed.” The district court sentenced defendant to pay a special assessment of $5,000 under the Justice for Victims of Trafficking Act, 18 U.S.C. §§ 3013, 3014. On appeal, the Seventh Circuit rejected defendant’s challenge to the special assessment, holding that the plea agreement’s waiver of appeal also waived the right to challenge the special assessment. U.S. v. Bolin, __ F.3d __ (7th Cir. Nov. 7, 2018) No. 18-2208.
7th Circuit upholds plea advice that court would be “looking at” guidelines at sentencing. (790) Under Federal Rule of Criminal Procedure 11(b)(1)(M), the district court must inform a defendant who is pleading guilty that the court is obligated to calculate the guideline range and to consider that range in sentencing. At defendant’s change-of-plea hearing, the district court told him that it would be “looking” at the guidelines and that the guidelines “serve as guides to the court, but are not mandatory.” The court also ascertained that defendant had asked questions of his attorney about the guidelines. The Seventh Circuit found the district court’s discussion of the guidelines was sufficient to satisfy Rule 11(b)(1)(M). U.S. v. Austin, __ F.3d __ (7th Cir. Oct. 29, 2018) No. 16-3211.
7th Circuit holds failure to mention forfeiture did not render plea involuntary. (790) Federal Rule of Criminal Procedure 11(b)(1)(J) requires a district court at a change-of-plea hearing to inform defendant of “any applicable forfeiture.” At defendant’s change-of-plea hearing, the district court did not mention forfeiture. At sentencing, the district court ordered defendant to forfeit more than $4 million, and defendant did not object. On appeal, the Seventh Circuit found no plain error, ruling that defendant failed to show that he would have refused to plead guilty if he had been properly advised that the court could forfeit his property. Defendant’s decision to plead guilty was not involuntary, and the forfeiture was not plain error. U.S. v. Austin, __ F.3d __ (7th Cir. Oct. 29, 2018) No. 16-3211.
4th Circuit permits government to decline § 5K1.1 reduction but enforce plea agreement. (710)(790) Defendant’s plea agreement provided that if he complied with the agreement and the government found he provided substantial assistance, the government would move for a substantial assistance departure. Prior to sentencing, the government informed defendant that it would not be seeking the § 5K1.1 reduction because it did not believe that defendant testified fully against his co-conspirators and instead downplayed their involvement. The government did not, however, seek to hold defendant in breach of the plea agreement, and it made other sentencing recommendations required by the agreement. The Fourth Circuit rejected defendant’s argument that the district court erred in allowing the government to decline to seek a § 5K1.1 substantial assistance reduction without demonstrating that he breached the plea agreement. The agreement gave the government sole discretion to decide whether defendant provided substantial assistance. Even if defendant’s conduct amounted to a breach of the plea agreement, the government had the right to waive that breach. It did not have to comply with procedures governing a breach in order to exercise its right not to move for a substantial assistance reduction. U.S. v. Under Seal, __ F.3d __ (4th Cir. Aug. 22, 2018) No. 17-4558.
1st Circuit says government’s reliance on number of firearms to support higher drug sentence did not breach plea agreement. (330)(790) Defendant pled guilty to possessing firearms and possession of cocaine. In his plea agreement, the government agreed to recommend a 60-month sentence for the firearm count, and a sentence at the high end of the 6-12 month guideline range for the drug count. At sentencing, the government requested the 60-month sentence for the firearm count, and encouraged the court to sentence defendant near the top of the 6-12 month range for the drug count based on “the sheer volume and quantity of firearms that were seized.” The district court sentenced defendant to 84 months on the firearm count, and 12 months on the drug count. Defendant argued for the first time on appeal that the government breached the plea agreement by implicitly arguing that the agreed-upon 60-month sentence for the weapons charge was too low. The First Circuit disagreed. The government did not lament the plea agreement’s terms, and stated its recommendation on the weapons charge without any reservation. It confirmed to the court that its reference to defendant’s weapons went only to the drug charge, and reiterated that it was recommending a 60-month sentence on the firearm count. U.S. v. Irizarry-Rosario, __ F.3d __ (1st Cir. Sept. 10, 2018) No. 17-1117.
4th Circuit says “applicable guideline range” meant guideline range found by district court. (790) Defendant signed a plea agreement in which the government agreed to seek a sentence at the lowest end of the “applicable guideline range.” At sentencing, the government recommended a sentence at the lowest end of the guideline range found by the district court. Defendant argued on appeal that the government was actually obligated to recommend a sentence at the lowest end of the correct guideline range, which, in his view, was lower than the range found by the court. The Fourth Circuit disagreed, ruling that the phrase “applicable guideline range” only obligated the government to recommend a sentence at the lowest end of the guideline range found by the court. In the context of a federal sentencing proceeding, where the district court first determines the “applicable guideline range” and the government then has an opportunity to make a sentencing recommendation, it was clear that a promise by the government to recommend a sentence at the lowest end of the “applicable guideline range” was a promise to recommend a sentence at the lowest end of the range found by the court. U.S. v. Tate, 845 F.3d 571 (4th Cir. 2017).
1st Circuit says government did not breach plea agreement by telling court about drug paraphernalia in defendant’s vehicle. (790) Defendant pled guilty to unlawful possession of a fully-automatic firearm, after police recovered from his car a pistol modified to shoot automatically. Although officers also found a bag containing drug paraphernalia in the trunk of defendant’s vehicle, this was omitted from the plea agreement’s stipulated version of the facts. Prior to sentencing, the government submitted a sentencing memo that discussed the drug paraphernalia, noting that it was “consistent with what drug traffickers usually keep and use.” The district court varied upward from the guideline range of 18-24 months to impose a 36-month sentence. The First Circuit held that the government did not breach the plea agreement by informing the court about the drug paraphernalia. The plea agreement expressly provided that the government could recommend a sentence at the high end of the guideline range, which it did, specifically asking for a 24-month sentence. The prosecution never explicitly or implicitly sought a sentencing enhancement under §2K2.1(b)(6)(B), for possessing a firearm in connection with another felony. U.S. v. Cruz-Vázquez, 841 F.3d 546 (1st Cir. 2016).
7th Circuit says government did not breach plea agreement by supporting increase not mentioned in agreement. (790) Defendant pled guilty to heroin charges. His plea agreement required the government to make several sentencing recommendations, but did not mention a dangerous weapon enhancement. The agreement also required the government to recommend a sentence within the guideline range determined by the district court. At sentencing, the judge applied a two-level enhancement for possession of a dangerous weapon in connection with a drug offense. Defendant objected, but the government responded that the enhancement was proper because federal agents had recovered a handgun from defendant’s residence. The government also recommended a sentence at the high end of the new higher guideline range. The Seventh Circuit held that the government did not breach the plea agreement. The agreement expressly stated that the parties were free to make sentencing recommendations not mentioned in the agreement, which is what the government did when it supported the dangerous weapon enhancement. The government also clearly satisfied its obligation to recommend a sentence within the guidelines range calculated by the district judge, even though the range was higher than anticipated in the plea agreement. U.S. v. Morris, 836 F.3d 868 (7th Cir. 2016).
7th Circuit holds that defendants waived right to challenge sentences within guideline range. (790)(855) Defendants operated two convenience stores, where they sold counterfeit goods and illegally traded cash or ineligible items for food stamps. As part of a plea agreement, defendants waived their right to appeal so long as their sentences were within the advisory guideline range. The district court sentenced them each to a within-guidelines range sentence of 85 months. Nonetheless, defendants appealed, arguing for the first time that the government breached the plea agreement by not recommending reductions for acceptance of responsibility, and not recommending a sentence at the low end of the range for defendant Odeh. The Seventh Circuit dismissed the appeal, holding that defendants waived their right to challenge the sentences. Moreover, the panel noted that the agreement provided that if defendants took any position inconsistent with an acceptance of responsibility, the government was no longer required to recommend the reduction. Defendant Hussein acted inconsistent with an acceptance of responsibility when he argued that the loss was around $332,000 despite his stipulation in the plea agreement that the loss was at least $1,000,000. Odeh falsely blamed his employees, his lack of English proficiency, and his ignorance of American laws for his criminal conduct. U.S. v. Odeh, 832 F.3d 764 (7th Cir. 2016).
11th Circuit holds government breached plea agreement by failing to recommend acceptance reduction. (790) Defendant pled guilty to drug charges pursuant to a written plea agreement requiring the government to recommend a reduction for acceptance of responsibility. At sentencing, the government argued that it was not obligated to seek a reduction if the court concluded that defendant had obstructed justice by committing perjury during his suppression hearing, even though the hearing took place before the plea deal was offered. In response to the court’s concerns, the government conceded that defendant was “probably” entitled to a three-level reduction. The court recalculated defendant’s guideline range as 18-24 months, and then varied upward to 60 months. The Eleventh Circuit held that the government breached the plea agreement by failing to recommend the acceptance reduction. Viewed objectively, the government’s actions were “inconsistent with what the defendant reasonably understood when he entered his guilty plea.” The promise to recommend the reduction was a key material concession by the government in the plea agreement. The government could not excuse itself from its obligation based on facts of which it was aware prior to entering the plea agreement. Defendant was entitled to specific performance of the terms of the agreement, even though the court ultimately applied the acceptance reduction. U.S. v. Hunter, 835 F.3d 1320 (11th Cir. 2016).
3rd Circuit says government’s statement that court’s sentence would be “reasonable,” did not breach plea agreement. (790)(855) Defendant argued that the government breached its promise to recommend offense level 23. The Third Circuit found that defendant failed to preserve this claim, and found no plain error. At sentencing, defense counsel stated at sentencing that the court’s downward departure from level 30 to 27 would be “in contradiction to the plea agreement.” This statement failed to present the court with the specific claim raised on appeal. Defendant did not state that the government was bound by the 5K1.1 motion or that the government was obligated to request level 23; nor did defendant convey the meaning of his claim on appeal in any other way. There was no clear or obvious breach of the agreement. The government filed a written 5K1.1 motion, which requested a downward departure to level 23. The government’s comments at sentencing were consistent with its §5K1.1 motion. The government wavered only slightly from this position in response to pressure from the district court. Specifically, the court urged the government to request a downward departure to level 26. In this context, the government agreed that a sentence at level 26 would be reasonable. U.S. v. Miller, __ F.3d __ (3d Cir. Aug. 12, 2016) No. 15-2577.
1st Circuit finds prosecutor did not breach plea agreement by saying PSR’s conflicting calculations were correct. (790) Defendant pled guilty to possessing child pornography, and was sentenced to 135 months in prison. At sentencing, the prosecutor noted that while the PSR came back with a different guideline calculation than the plea agreement, and that it believed that the PSR was “correct”, it had agreed in the plea agreement to a range of 70-87 months, and was standing by its recommendation of an 87-month sentence. Defendant argued that the prosecutor’s statement that the calculations in the PSR were “correct” breached the plea agreement. The PSR included two guideline enhancements that were not listed in the plea agreement. The parties had agreed in that agreement that “no further adjustments or departures” would be sought. The First Circuit found no breach. The prosecutor properly balanced his competing obligations to comply with the terms of the agreement and “to provide relevant information to the sentencing court.” Moreover, there was no prejudice because defense counsel acknowledged at sentencing that the record supported the PSR’s calculations. U.S. v. Gall, __ F.3d __ (1st Cir. July 15, 2016) No. 14-1948.
9th Circuit says government did not breach plea agreement by seeking restitution. (610)(790) Defendant pleaded guilty to alien smuggling pursuant to a plea agreement. The plea agreement did not specifically warn that defendant might have to pay restitution, but it did state that defendant would not attempt to reduce any term of supervised release until he had paid any restitution ordered and that he would not attempt to collaterally attack a restitution order. At a hearing, defendant acknowledged that he had to pay restitution. The Ninth Circuit held that the government did not breach the plea agreement by arguing for restitution. U.S. v. Alvarez, __ F.3d __ (9th Cir. Sept. 1, 2016) No. 14-50506.
9th Circuit refuses to enforce appeal waiver where sentence was based on vague guideline. (790)(850) Defendant pleaded guilty to a firearms offense in a plea agreement that contained a waiver of his right to appeal. In the Ninth Circuit, an appeal waiver does not prevent a defendant from appealing an “illegal” sentence. The Ninth Circuit held that a sentence enhanced based on a provision of the Sentencing Guidelines that is unconstitutionally vague is “illegal,” and therefore that a defendant is not bound by an appeal waiver in a plea agreement. U.S. v. Torres, __ F.3d __ (9th Cir. July 14, 2016) No. 14-10210.
8th Circuit says government did not breach agreement by arguing against acceptance credit. (492)(790) Defendant pled guilty to a meth conspiracy. He argued that the government violated the plea agreement by arguing against an acceptance-of-responsibility reduction, and that the court erred in denying a reduction. The Eighth Circuit disagreed. The agreement provided that the government would “move for an additional one-point reduction for acceptance of responsibility” if the court “accepts a recommendation in the Presentence Report that the defendant receive two points for acceptance of responsibility.” The PSR made no recommendation for acceptance of responsibility, so the government had no duty to argue for acceptance of responsibility. The court had ample evidence to deny the reduction. Defendant sent threatening letters to cooperating defendants and witnesses, and denied relevant conduct in multiple objections to the PSR. U.S. v. Torres-Rivas, __ F.3d __ (8th Cir. June 9, 2016) No. 15-1685.
7th Circuit holds that plea agreement did not require government to argue for full resentencing at remand. (790) Defendant’s plea agreement required the government to recommend a sentence of 35 years in prison followed by lifetime supervision. However, the district court imposed a sentence of 40 years in prison and a life term of supervised release. Defendant appealed the term and conditions of supervised release, and the case was remanded for a full resentencing. The district court, however, misinterpreted the remand to only require it to reconsider the supervised release, and reimposed the 40-year term of imprisonment. Defendant argued for the first time on appeal that the government breached the agreement by failing at resentencing to recommend the 35-year term of imprisonment. The Seventh Circuit disagreed, finding no term in the plea agreement required the government to argue to the district court that the remand required a full resentencing. The agreement required the government to recommend the 35-year term, but only if the court conducted a full resentencing. The condition triggering the government’s obligation to perform did not happen during the resentencing. Further undermining defendant’s position was his own attorney’s belief that the remand order did not allow for the district court to reconsider defendant’s prison sentence. U.S. v. Orlando, __ F.3d __ (7th Cir. May 25, 2016) No. 15-2092.
5th Circuit reverses where government failed to recommend sentence in plea agreement. (790) Defendant pled guilty to drug charges pursuant to a plea agreement. His guideline range was 151-188 months, and the court sentenced him to 188 months. The government had agreed in defendant’s written plea agreement to recommend a sentence at the bottom of the applicable guideline range, but failed to make that recommendation. The Fifth Circuit held that the government’s failure to make the promised recommendation was plain error, and reversed. The first two plain error factors were clearly met – there was an error, and the error was clear or obvious. The error also affected defendant’s substantial rights. The court sentenced him to the top of the applicable range, and there was no indication the court would have been unmoved by a government recommendation for a lower sentence. Finally, the government’s failure to fulfill its promise affected the fairness, integrity, and public reputation of judicial proceedings. On remand, defendant could rescind the entire agreement or he could be sentenced again by a different judge. U.S. v. Williams, __ F.3d __ (5th Cir. May 9, 2016) No. 14-11131.
4th Circuit finds government breached agreement by changing position, despite asking court to honor the agreement. (790) Defendant pled guilty to firearms charges pursuant to a plea agreement. In the plea agreement, the government agreed to advise the district court that a §2K2.1(b)(6)(B) enhancement for use or possession of a firearm in connection with another felony offense did not apply. The government’s agreement was based on its view that defendant’s North Carolina conviction for breaking and entering a motor vehicle did not constitute a felony for a defendant with defendant’s criminal history. At sentencing, however, the government told the court that it had changed its position, and now believed the offense was a felony. Nonetheless, the government asked the court to honor the plea agreement and not apply the enhancement. The court, however, applied the enhancement. The Fourth Circuit held that the government, although acting in good faith, breached the plea agreement by stating that the enhancement did apply. The breach was material, since the government’s willingness to agree that §2K2.1(b)(6)(B) was inapplicable was critical to defendant’s acceptance of the plea agreement. The court remanded for resentencing before a different district judge. U.S. v. Warner, __ F.3d __ (4th Cir. Apr. 27, 2016) No. 15-4316.
7th Circuit finds no breach even though 28 victims testified, when the agreement named only four. (790) Defendant pled guilty to mail fraud and aggravated identity theft pursuant to a written plea agreement. The agreement specifically identified three companies and one individual he defrauded. At sentencing, however, the government presented evidence that there were 28 victims. Despite having waived his right to appeal, defendant argued that the government materially breached the plea agreement by presenting evidence of 28 victims when only four were referred to by name in the agreement. The Seventh Circuit disagreed, since the plea agreement made clear that the named victims were either “an example” or just “one of” the companies he defrauded. Nothing in the factual basis indicated an agreement as to the number of the victims or purported to limit the government’s ability to present evidence of other of victims for the purposes of sentencing. The government did not breach the plea agreement. U.S. v. Malone, __ F.3d __ (7th Cir. Mar. 9, 2015) No. 15-2400.
2nd Circuit holds that failure to advise defendant that offense required restitution was not plain error. (610) (790) Defendant argued for the first time on appeal that the district court violated Rule 11(b)(1)(K) by failing to inform him that his offenses required the imposition of restitution. The Second Circuit found no plain error. Although the district court erred in failing to advise defendant about restitution, defendant could not show that he would not have pleaded guilty but for the Rule 11 violation. First, the so-called Pimentel letter provided by the government to defendant warned defendant before he entered his plea that the court was required to order restitution. Second, both the Pimentel letter and the plea colloquy instructed defendant that he faced a potential fine of $1 million, far more than what he could reasonably have expected to pay in restitution. The government and the district court also informed defendant that the crimes to which he pleaded guilty carried a maximum sentence of ninety years’ imprisonment. Finally, the District Court reminded defendant that the indictment contained a forfeiture count. It was unlikely that defendant was willing to face these stiff punishments by pleading guilty, but not the mere possibility of paying restitution. U.S. v. Tulsiram, __ F.3d __ (2d Cir. Mar. 7, 2016) No. 14-2483-cr.
1st Circuit affirms despite failure to advise defendant that he had no right to withdraw plea. (790) Defendant argued that the district court failed to inform him, as required by Fed.R.Crim.P. 11(c)(3)(B), that he could not withdraw his guilty plea if the court did not follow the sentencing recommendation in the plea agreement. However, defendant never sought to withdraw his plea and never objected to the court’s failure to provide the required warning. The First Circuit that the error, while plain, did not affect defendant’s substantial rights. The court did advise defendant that each count carried a maximum punishment of life imprisonment, that it had discretion to sentence above the guidelines, and that it was not bound by the recommendation in the plea agreement. Moreover, the agreement stated that defendant could not withdraw his plea “solely as a result of the sentence imposed and the Court is not bound by this plea agreement.” The “court’s admonitions, the [defendant’s] statements, and the contents of the plea agreement combined to put the [defendant] on ample notice of the consequences of his plea.” U.S. v. Rivera-Clemente, __ F.3d __ (1st Cir. Feb. 10, 2016) No. 13-2275.
8th Circuit says government did not breach plea agreement by offering statements defendant made to investigator. (790) Defendant was convicted of hiring undocumented immigrants. At sentencing, the government sought an obstruction of justice enhancement based on defendant’s claims to government investigator that one of defendant’s crew chiefs, Perez, was a subcontractor not an employee, and thus responsible for hiring his own workers. Defendant’s plea agreement stipulated that “Defendant believed he could pay the workers and crew chiefs as independent contractors and did not withhold taxes from their pay.” Defendant argued that the government breached the plea agreement by offering evidence of his statements to the investigator. He argued that if he believed he could pay his workers as subcontractors, then he must have believed that the workers were subcontractors. The Eighth Circuit found no breach. The government did not pursue the obstruction enhancement based on defendant’s classification of the workers as subcontractors, but on defendant’s attempt to shift the blame onto Perez for harboring the illegal aliens. The government claimed, and the district court found, that defendant was not truthful when he told the investigator that Perez was responsible for hiring and paying his own workers. U.S. v. Manzano-Huerta, __ F.3d __ (8th Cir. Jan. 4, 2016) No. 15-1416.
1st Circuit says prosecutor’s belated sentence recommendation did not breach plea agreement. (790) Defendant plead guilty to charges under a plea agreement in which the parties stipulated that they would recommend a sentence within the range of 135-168 months on the drug charges. The agreement also provided that the government would not recommend a sentence in excess of 168 month even if the assumed criminal history category turned out to be understated. At sentencing, the government requested that defendant be sentenced to the maximum of the applicable guideline range, noting that defendant’s criminal history score was actually II rather than I as assumed in the plea agreement. Slightly later, defense counsel pointed out that the plea agreement provided that its sentencing recommendation applied “irrespective of defendant’s history.” The belatedly-enlightened prosecutor thereafter sought a high-end sentence of only 168 months. The judge then imposed a total prison sentence of 150 months on the drug charge. The First Circuit held that defendant was not entitled to resentencing based on the prosecutor’s alleged failure to recommend the plea agreement sentence. The transcript as a whole made clear that all present knew plainly (except initially, the prosecutor) that the government’s sentencing recommendation was as in the plea agreement. It was not obvious that there was a breach that was not adequately corrected. U.S. v. Oppenheimer-Torres, __ F.3d __ (1st Cir. Nov. 14, 2015) No. 14-1676.
7th Circuit finds government’s suggestion that court depart upward breached the plea agreement. (790) Defendant pled guilty to cocaine conspiracy charges pursuant to a plea agreement. In the agreement both he and the government agreed to refrain from seeking a departure from the guideline range as determined by the district court. At sentencing, the district court rejected a role enhancement under § 3B1.1 and found that the guidelines range was 188-235 months. The government argued in favor of an upward departure as suggested in Application Note 2 to U.S.S.G. § 3B1.1(b), and also recommended an above-guidelines sentence of 320 months. Defendant did not object to the government’s breach of the plea agreement. The district court departed upward and imposed a sentence of 262 months. The Seventh Circuit agreed with defendant that the government’s breaches of the plea agreement warranted vacating his sentence. The case was remanded for resentencing. U.S. v. Navarro, __ F.3d __ (7th Cir. Oct. 27, 2015) No. 14-2211.
11th Circuit finds any breach of plea agreement was harmless. (185)(790) Defendant pled guilty of conspiring to possess five kilograms or more of cocaine and 50 or more grams of methamphetamine. The district court applied a base offense level of 38 under § 2D1.1(c)(2), based on a drug quantity of 244 kilograms of cocaine. Defendant argued for the first time on appeal that the government breached his plea agreement by relying on statements in his proffer, which were protected by U.S.S.G. § 1B1.8, and that without these protected statements, there was insufficient evidence to find him responsible for 244 kilograms of cocaine. The Eleventh Circuit found that any error was harmless. Even if the government breached the plea agreement, defendant could not show that the breach affected his substantial rights. There was nothing in the record to indicate that defendant would have received a different sentence had the drug quantity attributable to him been substantially lower. The record showed that the district court would have imposed the same sentence even if defendant was responsible for only five kilograms of cocaine. U.S. v. Puentes-Hurtado, __ F.3d __ (11th Cir. July 22, 2015) No. 13-12770.
1st Circuit holds that introducing defendant’s arrest video did not breach plea agreement. (790) Defendant pled guilty to two firearms charges. He argued that the prosecution breached his plea agreements by seeking to introduce at sentencing video footage depicting defendant’s August 20, 2013, arrest. The video showed defendant attempting to flee from law enforcement by backing his car into a U.S. Marshals vehicle which, though unmarked, had strobe lights that were visible. The video also showed defendant did not surrender when the Marshals, who were then wearing bulletproof vests emblazoned with the words “U.S. Marshal,” appeared in his sightline. Defendant contended that the government sought to introduce this video evidence to convince the district court, in violation of his plea agreement, to apply an enhancement under the guidelines for reckless endangerment or obstruction of justice. The First Circuit disagreed. Defendant’s plea agreement specifically contemplated that the government could argue that the sentences for his offenses should run consecutively. The panel concluded that the prosecution was offering evidence to assist the court in deciding whether to impose consecutive or concurrent sentences, just as the parties’ agreements allowed. U.S. v. Quinones-Melendez, __ F.3d __ (1st Cir. July 1, 2015) No. 14-1369. XE “U.S. v. Quinones-Melendez, __ F.3d __ (1st Cir. July 1, 2015) No. 14-1369.”
1st Circuit rules government’s statements at sentencing did not violate plea agreement. (790) Defendant pled guilty to drug trafficking crimes. His written plea agreement did not recommend a firearm enhancement, and stipulated that the parties agreed that “no further adjustments or departures” would be sought. His PSR, however, indicated that one of defendant’s co-conspirators carried a gun during the conspiracy. At sentencing, after the government acknowledged that they had evidence that firearms were involved in the offense, the district court imposed a two-level firearm enhancement. The First Circuit held that the government’s comments did not violate the plea agreement. The agreement did not limit the information the prosecutor could convey. It merely limited the “purpose of her remarks.” The district court, not the prosecutor, raised the subject of the challenged enhancement based on its reading of the PSR. In response to an apparent invitation by the court, the prosecutor explained in non-argumentative terms her knowledge of the basis for the PSR’s recommendation. Then the prosecutor twice voiced full support for including no enhancement. U.S. v. Miranda-Martinez, __ F.3d __ (1st Cir. June 24, 2015) No. 14-1149.
6th Circuit holds that government did not breach plea agreement by making recommendation after defendant’s objection. (790) As part of defendant’s plea agreement, the government agreed to recommend a three-year sentence. However, in its sentencing memorandum and at sentencing, the government did not say anything about an appropriate sentence. At the end of the sentencing hearing, the court acknowledged the terms of the plea agreement, including that the government’s agreement to recommend a three-year sentence. Defendant then objected that the prosecutor had not made this recommendation. At this point, the government responded that it “recommended a three-year sentence.” The Sixth Circuit held that the government did not breach the plea agreement’s promise to recommend a three-year sentence. Although the government should have issued this recommendation on its own initiative, it did not breach the plea agreement by requesting a three-year sentence after defendant’s formal objection but before the district court reached a conclusion. Even before defendant objected, the district court was well aware that the government had agreed to recommend a three-year sentence. Any tardiness by the government did not compromise the fairness of the plea bargaining process. U.S. v. Reed, __ F.3d __ (6th Cir. June 5, 2015) No. 14-2071.
8th Circuit holds that evidence and argument in favor of crime of violence enhancement did not breach plea agreement. (340)(790) Defendant pled guilty to illegal reentry pursuant to a plea agreement in which he waived the right to appeal his conviction and sentence. He argued that the district court breached the plea agreement by arguing that he was convicted of a previous felony crime of violence, to support a 16-level crime of violence increase under §2L1.2(b)(1)(A)(ii). He contended that this contradicted the factual stipulation in his plea agreement that his 2006 California assault conviction resulted in a sentence of 365 days in jail. The Eighth Circuit found no breach. The government honored the stipulated base offense level at sentencing, and honored the plea agreement’s provision to recommend only a two-level departure under §5K3.1. The plea agreement did not prohibit the government from seeking sentencing enhancements for which there was no stipulation, such as the §2L1.2(b)(1)(A)(ii) enhancement. The government’s evidence offered in support of the §2L1.2(b)(1)(A)(ii) enhancement did not contradict the factual stipulation in the plea agreement. Defendant’s California conviction for assault with a deadly weapon was a “wobbler” offense that could qualify as either a misdemeanor or a felony, and the government offered evidence that the offense was a felony. Because the government did not breach the agreement, the waiver was enforceable. U.S. v. Quebedo, __ F.3d __ (8th Cir. May 29, 2015) No. 14-2246.
8th Circuit finds defendant failed to show that he would have gone to trial if he had received proper sentencing advice. (790) Defendant contended for the first time on appeal that the district court violated Fed.R.Crim.P. 11(b)(1)(M) at his plea hearing. He asserted that he pleaded nolo contendere because he thought he would receive a sentence of probation, and that proper advice under Rule 11(b)(1)(M) would have disabused him of this notion. The Eighth Circuit agreed that the district court erred by failing to provide the information required by rule, but found that defendant has not established a reasonable probability that he would have proceeded to trial if the district court had satisfied Rule 11(b)(1)(M). Defendant received notice that was comparable to this rule. The court informed defendant that he faced a maximum sentence of “not more than 20 years,” and told him pointedly that he may “get time in the federal correction institution.” Defendant’s attorney stated that he had reviewed the sentencing guidelines with defendant, estimated where he would fall in the guidelines, and explained to defendant how the guidelines work “in a generalized way.” U.S. v. Bateman, __ F.3d __ (8th Cir. Apr. 10, 2015) No. 13-3769.
5th Circuit holds government breached plea agreement by using protected information. (185)(790) Defendant pled guilty to charges stemming from a negotiation to sell drugs in November 2011 and an actual sale in June 2012. In a cooperation agreement, defendant agreed to provide information to the government, in exchange for a guarantee that this information would not “be used to increase [defendant’s] Sentencing Guideline level or used against [defendant] for further prosecution.” At sentencing, the government introduced information about a different, intervening drug transaction, which the government acquired under the protection of defendant’s plea agreement. The government relied on this information to support its theory that the November and June transactions were separate and that defendant should be accountable for both. The Fifth Circuit held that the government breached the plea agreement by using protected information against defendant. Here, the terms of the supplement to defendant’s plea agreement included the government’s promise that any information provided by defendant, other than that charged in the pending indictment, would not be used to increase his guideline level. The agreement explicitly incorporated §1B1.8. U.S. v. Chavful, __ F.3d __ (5th Cir. Mar. 20, 2015) No. 13-11173.
11th Circuit remands where plea agreement failed to state ACCA sentence. (540)(790) Defendant pled guilty to firearms charges pursuant to a plea agreement that explicitly stated that he would not be subject to an enhanced sentence under the Armed Career Criminal Act (ACCA). The agreement provided that defendant could be sentenced up to a maximum of ten years, and the court repeated this information at defendant’s plea hearing. However, in preparing defendant’s PSR, the probation officer found that defendant qualified as an armed career criminal, resulting in a mandatory minimum sentence of 15 years. The district court denied defendant’s motion to withdraw his guilty plea, and sentenced him to 180 months. The Eleventh Circuit held that the district court did not err in sentencing defendant under the ACCA to 180 months. Enforcing the agreed-upon ten-year sentence would result in an illegal sentence, because application of the ACCA is mandatory when a defendant meets the statutory requirements. However, the district court abused its discretion in denying defendant’s motion to withdraw his guilty plea. Once the parties brought to the court’s attention its failure to comply with Rule 11, the court should have permitted defendant to withdraw his guilty plea. U.S. v. Symington, __ F.3d __ (11th Cir. Mar. 25, 2015) No. 14-10482.
1st Circuit says defendant not entitled to withdraw plea after court rejects recommended sentence. (790) Defendant pled guilty to firearms charges pursuant to a plea agreement in which the government recommended the mandatory minimum sentence of 60 months and asked the court to dismiss two drug counts. The court dismissed the drug counts, but rejected the recommended 60-month sentence, and instead imposed a 108-month sentence. The First Circuit held that defendant was not entitled to withdraw his guilty plea after the court rejected the 60-month sentence recommended by both parties. The plea agreement and the transcript of the change-of-plea colloquy made it abundantly clear that defendant knew that the district court was free to reject the 60-month recommended sentence, and that he would not have an opportunity to withdraw his plea if the court did so. Although defendant’s agreement required the government to move to dismiss the two drug counts under Rule 11(c)(1)(A), this did not mean the court was required to accept the recommended 60-month sentence. The court granted the government’s motion to dismiss the two drug counts, but was not required to give defendant the opportunity to withdraw his guilty plea. U.S. v. Diaz-Bermudez __ F.3d __ (1st Cir. Feb. 13, 2015) No. 13-1732.
3rd Circuit says removal of joint recommendation from plea agreement did not bar government from making argument at sentencing. (790) Defendant and the government negotiated a plea agreement which included a provision, in Paragraph 14, that defendant possessed a firearm. At some point during the plea negotiations, the clause “and the defendant possessed a firearm” was stricken from Paragraph 14. At the plea hearing, the government stated that a loaded gun had been found during the search. The Third Circuit rejected defendant’s argument that the government breached his plea agreement when it urged the district court to impose a two-level gun enhancement under §2D1.1(b)(1). Paragraph 14 made clear that the government reserved the right to provide the district court with “all information in its possession which it deems relevant.” The government raised the issue of the gun only in direct response to defendant’s argument that there was insufficient evidence to connect the gun with his offense. Paragraph 14 contained joint recommendations of the parties. The removal of the gun enhancement meant simply that the parties no longer jointly agreed on that specific recommendation. U.S. v. Davenport, __ F.3d __ (3d Cir. Jan. 6, 2015) No. 13-3644.
Supreme Court says plain error rule applies to government’s breach of plea agreement. (790) Defendant pleaded guilty to bank robbery pursuant to a plea agreement in which the government agreed that defendant has demonstrated acceptance of responsibility and thereby qualified for a three-level reduction in offense level. Prior to defendant’s sentencing, he participated in a scheme to defraud the Postal Service. At sentencing, the government opposed any reduction in defendant’s offense level for acceptance of responsibility. Defendant did not object to the prosecutor’s failure to abide by the plea agreement. The district court declined to grant the reduction, noting that it was “unknown” for a defendant who committed a crime after pleading guilty to receive an acceptance-of-responsibility deduction. On appeal, defendant argued that the government violated the plea agreement by failing to support an acceptance-of-responsibility reduction. In a 7-2 decision written by Justice Scalia, the Supreme Court held that the plain error standard applies to a defendant’s forfeited claim that the government failed to abide by a plea agreement. In applying the plain-error standard, the Court explained that the government’s breach of a plea agreement is not structural error and is not always prejudicial. Justices Souter and Stevens dissented. Puckett v. U.S., 556 U.S. __, 129 S.Ct. 1423 (2009).
Supreme Court to decide if plain error standard applies to breach of plea agreement. (790) Defendant and the government entered into a plea agreement stating that defendant qualified for a three-level decrease in his offense level under the Sentencing Guidelines for acceptance of responsibility. Prior to sentencing, defendant became ill, and after he recovered he sought to withdraw his guilty plea, and he admitted that while awaiting sentencing he had helped another inmate execute a scheme to defraud. As a result of this conduct, the government opposed any reduction in defendant’s offense level for acceptance of responsibility. Defendant did not object to the government’s failure to move for a downward adjustment for acceptance of responsibility or argue that the government had breached the plea agreement. On appeal, however, defendant argued that the government breached the plea agreement. The Supreme Court granted certiorari to determine whether the plain error standard applies to a defendant’s claim that the government breached a plea agreement. Puckett v. U.S., 129 S.Ct. __, 554 U.S. __ (Oct. 1, 2008) (granting certiorari).
Supreme Court requires “fair and just reason” to withdraw plea even if court defers accepting plea agreement. (790) In a unanimous opinion written by Chief Justice Rehnquist, the Supreme Court reversed the Ninth Circuit’s ruling in U.S. v. Hyde, 92 F.3d 779, 781 (1996), and held that a defendant may not withdraw his guilty plea unless he shows a “fair and just reason” under Rule 32(e), even if the district court defers acceptance of the plea agreement until sentencing. The Supreme Court found no support in either Rule 11, or Rule 32, Fed. R. Crim. P., to support the Ninth Circuit’s ruling that a defendant had an absolute right to withdraw his guilty plea before the district court accepted the plea agreement. The court said the Ninth Circuit’s holding was contradicted by the very language of the rules, and “would degrade the otherwise serious act of pleading guilty to something akin to a move in a game of chess.” Under the rules, defendant must show “good cause” even if the district court has not yet accepted the plea agreement. U.S. v. Hyde, 520 U.S. 670, 117 S.Ct. 1630 (1997).
Supreme Court says Rule 11 does not require factual basis for stipulated asset forfeiture in plea agreement. (790) Defendant pleaded guilty to engaging in a continuing criminal enterprise in violation of 21 U.S.C. §848 and agreed to forfeit numerous items of his property to the government. In an opinion written by Justice O’Connor, the Supreme Court held that Fed. R. Crim. P. 11(f) does not require the district court to determine whether a factual basis exists for stipulated asset forfeiture embodied in a plea agreement. The court also held that the right to a special jury verdict on forfeiture, in Fed. R. Crim. P. 31(e) was waived by the guilty plea and did not require specific advice from the district court as to the existence and scope of this right and an express, written waiver. The court reasoned that forfeiture is an element of the sentence imposed following conviction or plea of guilty and thus falls outside the scope of Rule 11(f). As for the right to a jury determination of forfeitability, this merely statutory in origin and specific advice regarding it is not among the Rule 11(c) safeguards. Justice Stevens dissented. Libretti v. U.S., 516 U.S. 29, 116 S.Ct. 356 (1995).
1st Circuit holds that government did not breach plea agreement by providing information requested by judge. (790) Defendant’s plea agreement recommended an offense level of 25. The parties pledged that neither of them would argue for any further offense-level adjustments. However, the recommendations were not binding on the district court. Defendant’s PSR contained information not included in the plea agreement’s stipulated facts, including that the victim had been restrained during the robbery. At sentencing, after being asked by the court, the AUSA stated that there was a factual basis for a two-level restraint enhancement. The district court applied the restraint enhancement, resulting in an offense level of 27. Defendant argued for the first time on appeal that the government breached his plea agreement by advising the court that the record supported the restraint adjustment. The First Circuit found no breach. The AUSA was under a duty, as an officer of the court, to provide accurate factual information to the sentencing judge once the judge had raised the issue. There was a material difference between answering questions asked by a sentencing court or bringing facts to the court’s attention and affirmatively supporting an adjustment. Supporting an enhancement entails an element of advocacy, and there was no such advocacy by the prosecutor here. U.S. v. Almonte-Nunez, __ F.3d __ (1st Cir. Nov. 14, 2014) No. 13-1896.
1st Circuit says prosecutor’s misstatement of probable guideline range did not make guilty plea involuntary. (790) Defendant argued that the prosecutor “drastically” overstated what his sentencing exposure would have been had he stood trial and been convicted on all counts. He claimed that if he had stood trial and been convicted on all counts, his guideline range would have been 24-30 months. He argued that the prosecutor’s inflated estimate of 107-131 months, agreed to by the court and by defense counsel, induced him to agree to the government’s proffer. The proffer recommended a two-year term of imprisonment. He argued on appeal that there was a strong possibility that, had he known the true extent of his sentencing exposure, he would have rejected the government’s proffer. He contended he should be allowed to withdraw his guilty plea and that the appellate court should not enforce the waiver of appeal in his plea agreement. The First Circuit ruled that because the prosecutor’s statement was made months after defendant decided to plead guilty, the prosecutor’s overestimate of the applicable guideline range did not render defendant’s decision to plead guilty unknowing or involuntary. U.S. v. Rodriguez-Morales, 647 F.3d 395 (1st Cir. 2011).
1st Circuit holds that failure to inform defendant that he faced life term of supervised release was reversible plain error. (790) Defendant pled guilty to possession of child pornography. His plea agreement provided that he faced a maximum term of supervised release of three years, and the court reiterated this assertion at his plea hearing. At sentencing, the judge found that, pursuant to 18 U.S.C. § 3583(k), the maximum supervised release term was life. Defendant did not object. The First Circuit held that the failure to inform defendant that he faced a possible life term of supervised release was reversible plain error. The government conceded the first two prongs of plain error review were met – there was an error and it was plain. Given defendant’s assertion that the information he received from the plea agreement and the judge “played a crucial role in his decision to plead guilty,” and the dramatic difference between a three-year period of supervised release and a lifetime of supervised release, defendant showed a reasonable probability that he would not have entered the plea if he understood that his exposure was a lifetime of supervised release. U.S. v. Rivera-Maldonado, 560 F.3d 16 (1st Cir. 2009).
1st Circuit rejects claim that defendant was confused about sentencing consequences of guilty plea. (790) Defendant argued that he should have been permitted to withdraw his guilty plea because he was confused about his sentencing exposure throughout the proceedings below. The sentencing transcript shows that at one point defendant thought he faced a five-year mandatory minimum sentence rather than the ten-year mandatory minimum that he actually faced. However, the district court promptly corrected this misimpression, advising defendant that if he did have prior felony drug convictions, his mandatory minimum would be ten years. Defendant acknowledged this, and repeatedly assured the court that he understood his potential sentencing exposure. Accordingly, the First Circuit rejected defendant’s claim he should have been permitted to withdraw his guilty plea.. “A defendant’s acknowledgement, during a change-of-plea proceeding, that he understands a lucid explantion of his potential sentencing exposure is powerful evidence of the knowing nature of his guilty plea.” U.S. v. Jimenez, 512 F.3d 1 (1st Cir. 2007).
1st Circuit finds government’s reference to additional drugs outside amounts stipulated to in plea agreement did not violate agreement. (790) The parties stipulated that defendant was responsible for 3.5 kilograms of cocaine, yielding a base offense level of 30, and with his criminal history category of I, a guideline range of 97-121 months. The agreement also provided that the government would recommend a 121-month sentence, while defendant would request 97 months. The First Circuit held that the government did not technically breach the plea agreement. Twice during sentencing the government asked the court to impose a sentence of 121 months. However, the court also informed the court that if the government had been forced to go to trial, it would have sought a base offense level of 38. Moreover, it stated that there were quantities of cocaine beyond the amount stipulated in the plea agreement. Although this conduct was troubling, the panel concluded that these statements did not rise to the level of plain error. Despite the government’s statement that it would seek a base offense level of 38 if it were forced to go to trial, the government reiterated that under the circumstances, it was seeking a much lower amount. Further, having explicitly stated that it was recommending a sentence at the high-end of the guideline range, the government was free to offer reasons in support of that recommendation. The government’s comments were in response to defense counsel’s argument that her client was a peripheral supplier, and in support of the government’s request for a sentence at the high end of the guideline range. U.S. v. Rivera-Rodriguez, 489 F.3d 48 (1st Cir. 2007).
1st Circuit holds that guilty plea not rendered involuntary by Booker. (790) Defendant argued that he should be permitted to withdraw his guilty plea because it was not voluntary, being based on an understanding of a sentencing scheme rendered erroneous by U.S. v. Booker, 543 U.S. 220 (2005). The First Circuit held that Booker did not render defendant’s guilty plea involuntary. Defendant was in fact sentenced under the mandatory sentencing scheme that he expected. The possibility of a favorable change in the law occurring after a plea is one of the normal risks that accompany a guilty plea. U.S. v. Sahlin, 399 F.3d 27 (1st Cir. 2005).
1st Circuit holds that defendant waived or forfeited Rule 11 claim by agreeing to court’s procedure. (790) Defendant argued that the court erred in not explaining during his Rule 11 colloquy that, under U.S. v. Harotunian, 920 F.3d 1040 (1st Cir. 1990), it could not depart both upward and downward, as his plea agreement contemplated. The First Circuit found that defendant at least forfeited this argument, and may have waived it as well by taking advantage of the court’s procedure to obtain the sentence he wanted. At sentencing, the court stated that in light of Harotunian, rather than departing upward to 25 years and considering a downward departure for substantial assistance, it would consider defendant’s substantial assistance in deciding the extent to which it would depart upward. The court gave counsel the opportunity to object to this procedure and defendant’s counsel did not object. The court then imposed a 20-year sentence, five years less than the maximum authorized by the plea agreement. The court again gave counsel the opportunity to object, and he did not. Defendant clearly understood what was happening. U.S. v. Sahlin, 399 F.3d 27 (1st Cir. 2005).
1st Circuit says government’s obligation to make § 5K1.1 motion was negated by defendant’s lie. (790) The government’s obligation to make a § 5K1.1 motion under defendant’s plea agreement was conditioned on defendant providing “complete, truthful and substantial cooperation.” The government would be released from compliance if defendant failed “in any way” to fulfill his obligation. Although defendant provided significant assistance, he admitted that in one instance, he had “failed to remember” a 1996 check that became important at trial and crucial to the position of the U.S. Attorney. He stipulated to an obstruction of justice increase. While defendant argued that this single episode did not negate the extensive cooperation he provided, his plea agreement explicitly gave the government the authority not to request a downward departure in the event defendant failed to meet his obligation to be truthful. The First Circuit held that in the face of defendant’s admitted obstruction of justice, the government’s decision was within its discretion under the agreement. U.S. v. Cruz-Mercado, 360 F.3d 30 (1st Cir. 2004).
1st Circuit agrees that defendant breached agreement but chastises government for misleading counsel about basis. (790) On the 5th day of defendant’s testimony at the trial of three co-defendants, the trial was aborted when the government accused defendant of committing perjury in response to questions about a company he and his wife created, Community Services. Following an evidentiary hearing to explore the government’s allegations, the district court found that defendant was not entitled to enforcement of his cooperation agreement. Defendant argued that the government “blindsided” his counsel at the revocation hearing by relying on three “vague and unannounced” allegations of perjury, rather than his testimony about Community. The First Circuit upheld the finding that defendant breached the plea agreement. The district court properly relied on three discrepancies in defendant’s testimony about his past criminal activities in revoking bail. Nonetheless, the panel chastised the government for being “considerably less forthcoming than the circumstances warranted” in disclosing the basis for revocation of bail. The transcript made clear that defendant’s testimony about Community was the primary basis for the government’s decision to terminate the trial and seek revocation of defendant’s bail. Defendant’s counsel reasonably had the impression that the government would be relying only on that alleged perjury at the revocation hearing. U.S. v. Cruz-Mercado, 360 F.3d 30 (1st Cir. 2004).
1st Circuit finds prosecutor who “paid lip service” to agreed-upon sentence while arguing for higher sentence violated plea agreement. (790) Under defendant’s plea agreement, the government was obligated to recommend a sentence “at the low end” of the guideline range. At sentencing, the prosecutor began with the statement that “in line with the plea agreement, the government would be recommending 70 months’ imprisonment….” The government then reviewed the facts of the case and defendant’s character, which by itself cannot constitute a breach of the plea agreement, since the government is obligated to bring all facts relevant to sentencing to the judge’s attention. However, the substance of the prosecutor’s argument at sentencing clearly emphasized defendant’s wrongdoing and his leadership role in the offense, and could only be understood as advocating for the imposition of a higher sentence than the agreed-upon term of 70 months. The First Circuit held that the government breached the plea agreement by “paying lip service” to the agreed-upon sentence, but substantively arguing for a sentence at the higher end of the guidelines. The initial recommendation “was undercut, if not eviscerated, by the [prosecutor’s] substantive argument to the district court.” U.S. v. Gonczy, 357 F.3d 50 (1st Cir. 2004).
1st Circuit holds that government did not breach plea agreement by pointing out court’s authority to depart. (790) Defendant’s plea agreement provided that neither defendant nor the government would seek a departure from the guidelines. Defendant appealed his sentence, arguing that the court erred in its career offender determination. In response, the government filed a motion for remand, conceding that the district court had erred in its career offender determination. Its brief stated, in part, that “On resentencing, moreover, the district court should be free to consider the applicability of U.S.S.G. § 4A1.3, which provides for upward departures when a sentencing court determines that the defendant’s CHC under-represents the seriousness of the defendant’s criminal history.” This statement appeared in boldface and was italicized. The First Circuit held that the government did not violate the terms of the plea agreement. Neither at sentencing or at the resentencing after remand did the government ever recommend or argue for an upward departure. The government was properly concerned about the phrasing of defendant’s remand request, and its goal was to seek “an accurate remand order.” Although the phrasing of the alert was clumsy, it did not constitute a breach of the plea agreement. U.S. v. Frazier, 340 F.3d 5 (1st Cir. 2003).
1st Circuit says court may not per se reject § 5K1.1 departures for defendants involved in murders. (790) Defendant’s plea agreement provided that the government would take the position that information he provided as part of his cooperation should not be used to determine whether, or to what extent, a departure was warranted. Nonetheless, the district court refused to grant a § 5K1.1 departure, relying on information defendant provided about his own involvement in several murders. The First Circuit held that the district court did not misinform defendant about how it would use the information he provided in its departure calculus. The court made it clear that it was under no obligation to depart, and it repeatedly advised him that a substantial assistance motion did not guarantee a departure. The government did not breach the plea agreement — it argued vigorously that the court should not use the information discussed in the plea agreement as part of its departure calculus. However, while the court had discretion to consider defendant’s role in the murders as grounds for denying the departure, the court’s comments suggested that it improperly followed a per se rule of denying § 5K1.1 departures to defendants involved in murders. If so, the court violated § 5K1.1’s mandate to conduct an individualized evaluation. The sentence was vacated and remanded for such an evaluation. U.S. v. Mills, 329 F.3d 24 (1st Cir. 2003).
1st Circuit holds that government’s opposition to departure motion did not breach plea agreement. (790) Defendant sought a downward departure pursuant to U.S.S.G. § 5H1.4 based on “an extraordinary physical impairment.” Defendant’s plea agreement provided in relevant part that the government would “not oppose defendant’s request if defendant provides the United States with the written opinion of a physician, supported by competent and sufficient medical records, which unequivocally states that defendant’s medical condition will result in a significant reduction of his life expectancy.” Defendant presented evidence that he had only one remaining kidney as a result of an emergency nephrectomy performed in 1985, suffered from cirrhosis and calcified arteries, and had a demonstrated family history of hearth disease. Defendant argued that the government breached the plea agreement by opposing his departure request. The First Circuit found the government’s opposition to the departure was not a breach, since defendant did not provide the medical opinion required to trigger the government’s obligation. Neither written opinion provided by defendant stated that defendant’s medical condition would “result in a significant reduction of his life expectancy.” One letter offered no opinion whatsoever about defendant’s life expectancy, and simply stated that the doctor had removed defendant’s kidney and related defendant’s mother’s statements about defendant’s other alleged ailments. The other letter stated that if defendant’s “remaining kidney were in any way damaged, [defendant’s] life expectancy would be severely shortened” and that defendant’s medical problems could shorten his life expectancy. This was a far cry from unequivocal statements that his medical conditions will result in a significant reduction of his life expectancy. U.S. v. Lujan, 324 F.3d 27 (1st Cir. 2003), habeas corpus granted in part by Lujan v. U.S., 2004 WL 2044302 (D.N.H. Sep. 14. 2004) No. CIV 04-247-SM.
1st Circuit holds that plea was knowing and voluntary. (790) Defendant’s plea agreement included a waiver of any right to appeal the sentence imposed. Defendant nonetheless attempted to appeal his sentence, claiming that his plea was not knowing and voluntary. Paragraph Seven set forth an agreement between the government and defendant that the guidelines resulted in a sentencing range of 30-37 months, and the United States would recommend a sentence of 30 months. However, the district court found that defendant was a career offender. Defendant argued that his attorney was ineffective in failing to tell him that his sentence would reflect his past convictions, and that his past conviction made the stipulation “virtually worthless.” On its face, the plea agreement stated the non-binding nature of the government’s recommendation and the unrestricted discretion, within the guidelines, of the court. Moreover, at the hearing on the change of plea, the court meticulously reviewed defendant’s understanding of the indictment and the rights he was surrendering. The court specifically addressed the paragraph contained the government’s recommendation, and pointed out that it would make its own review and, after the probation officer report, determine if defendant fell in a different criminal history category. The First Circuit concluded that the court complied with the requirements of Rule 11. U.S. v. Molina-Marrero, 320 F.3d 64 (1st Cir. 2003).
1st Circuit finds no miscarriage of justice from enforcement of appeal waiver. (790) Defendant argued that the court should not enforce his waiver of appeal because it would work a miscarriage of justice. See U.S. v. Teeter, 257 F.3d 14 (1st Cir. 2001). He claimed that the court should undo his entry of plea and vacate his conviction because of an alleged oral agreement with the prosecution for a shorter term of incarceration than the one contemplated by the written plea agreement. The First Circuit found no miscarriage of justice would result from its enforcement of the waiver of appeal. First, the plea agreement contained an integration clause, which stated that the written agreement constituted the complete agreement between defendant and the government, and that the government had made no promises except as set forth in the agreement. Second, at his change of plea hearing, defendant explicitly denied the existence of any oral agreement with prosecutors. Third, defendant offered only “his eleventh hour claim of a side deal with the prosecution.” “This type of claim, grounded in a belated factual assertion and raised to undo a result previously acknowledged by the defendant in writing and in colloquy with the court, falls short of demonstrating a serious question of ‘miscarriage of justice.’“ U.S. v. De-La-Cruz Castro, 299 F.3d 5 (1st Cir. 2002).
1st Circuit holds that court adequately advised defendant of ramifications of waiver of appeal. (790) Defendant’s plea agreement provided that if the court accepted the plea agreement and sentenced him according to its terms, then defendant would waive his right to appeal the judgment and sentence. At the change of plea hearing, the judge asked defendant if he understood that he was giving up his right to appeal “all or part” of his sentence, and he responded affirmatively. Defense counsel then acknowledged that he had explained the plea agreement to his client in Spanish, and that he was satisfied that defendant understood the agreement. Towards the end of the hearing, the court also stated to defendant that, “under some circumstances you or the government may have a right to appeal any sentence that the Court imposes.” The First Circuit held that the district court adequately informed defendant of the ramifications of the waiver, as required by U.S. v. Teeter, 257 F.3d 14 (1st Cir. 2001). The judge’s use of the phrase “all or part” of the sentence should not have caused misunderstanding. If one cannot appeal all of a sentence, or part of it, there is plainly nothing left of the sentence to appeal. The court’s statement that “under some circumstances you may have a right to appeal any sentence that the court imposes,” did not abrogate the waiver provision. That statement was correct in that a court may entertain an appeal in order to correct a “miscarriage of justice” even in the face of a knowing and voluntary waiver of appeal. U.S. v. De-La-Cruz Castro, 299 F.3d 5 (1st Cir. 2002).
1st Circuit says court was not required to examine applicability of safety-valve before accepting plea. (790) Defendant argued that, pursuant to Rule 11(f), the district court should have inquired into the applicability of the safety-valve provision before accepting his guilty plea. The First Circuit disagreed, and found that the district court’s dialogue satisfied Rule 11(f). Whether or not defendant used or threatened to use a firearm (the conduct which made him ineligible for the safety valve), was not a necessary part of the substantive offense. Although defendant contended that he did not understand at the time of his plea that he could be sentenced beyond the 87-108 month term mentioned in the plea agreement, the agreement stated at the outset that the statutory penalty for Count I was not less than ten years and not more than life, and the court expressly asked defendant whether he understood this penalty. Further, after addressing the sentencing range set forth in the plea agreement, the court inquired if defendant understood that “it’s up to the Judge to decide if that is correct, and it can go up or down, including the ten-year minimum and life sentence.” Again, defendant said he understood. The court did not provide inaccurate sentencing information. Any confusion of defendant about the potential length of his sentence was not the result of having been incorrectly advised by the court during the Rule 11 plea colloquy. U.S. v. Ramirez-Benitez, 292 F.3d 22 (1st Cir. 2002).
1st Circuit holds that government’s failure to make sentencing recommendation constituted plain error. (790) Defendant’s plea agreement provided that the parties would jointly recommend at sentencing that defendant be sentenced based on a drug quantity of five to 50 grams of cocaine base. However, the PSR recommended a sentence based on 480 grams of cocaine base, resulting in a guideline range of 188-235 months. At sentencing, notwithstanding the plea agreement, the government asked for a sentence of 200 months, while defense counsel opined that “188 months was plenty.” Neither the prosecutor nor defense counsel ever recommended that defendant’s sentence be calculated based on a drug amount of five to 50 grams, as required by the plea agreement. The district court accepted the plea agreement, concluded the guideline range was 188-235 months, and imposed a 235-month sentence. Defendant never raised any objection to his sentence before the district court. The First Circuit held that the prosecutor’s failure to recommend a sentence based on drug quantity of five to 50 grams breached the plea agreement, and that breach constituted plain error. The government’s failure to abide by the plea bargain was not a mere “technical” breach. U.S. v. Riggs, 287 F.3d 221 (1st Cir. 2002).
1st Circuit holds that government did not breach plea agreement by mentioning drug quantity. (790) Defendant claimed that the prosecutor breached the plea agreement by suggesting that he was responsible for “hundreds” of kilograms of drugs, directly contradicting the amount stipulated by the parties. He noted that during the sentencing hearing the government claimed that he had pled guilty to more than five kilograms of cocaine, and, as a result, the court sentenced him to the mandatory minimum of 120 months for the sale of more than five kilos. The First Circuit found no plea agreement breach. The government fulfilled its obligation under the agreement by recommending a sentence of 120 months. Even though defendant pled guilty to Count One of the indictment, which stated that the offense involved more than five kilograms of cocaine, the judge made clear at the change-of-plea hearing that he would only hold defendant responsible for between 3.5 and five kilograms in accordance with the joint stipulation. Likewise, at the sentencing hearing, the judge emphasized that he was only taking into account the lesser amount of drugs, as reflected in the plea agreement, when making his sentencing determination. Nothing in the transcript suggested that the judge believed that the statutory mandatory minimum of ten years was applicable to defendant. U.S. v. Giraud-Pineiro, 269 F.3d 23 (1st Cir. 2001).
1st Circuit rules promise not to file § 851 information did not bar government from seeking career offender sentence. (790) Defendant argued that the government breached his plea agreement by promising not to file an information pursuant to 21 U.S.C. § 851, but then arguing that defendant’s prior criminal history should be used to increase his sentence under USSG § 4B1.1, the career offender guideline. The First Circuit found no breach. The plea agreement did not contain a promise to abstain from seeking a § 4B1.1 enhancement. Defendant’s claim that the government’s promise not to file a § 851 information implicitly included a promise not to seek a § 4B1.1 enhancement muddled the distinction between § 851 and § 4B1.1. The government did not make an “end-run” around its promise not to file a § 851 information. If it had filed such an information, defendant’s maximum prison term under 21 U.S.C. § 841 would have risen from 20 to 30 years. Based on this enhanced statutory maximum, defendant’s sentencing range would have risen from 151-188 months to 188-235 months. U.S. v. Frisby, 258 F.3d 46 (1st Cir. 2001).
1st Circuit holds that government did not breach plea agreement by refusing to move for departure. (790) The government conceded that defendant provided assistance in its investigation of other drug traffickers, but refused to move for a § 5K1.1 departure because he was reticent about a murder in Boston. Defendant argued that the government improperly refused to file the § 5K1.1 motion to retaliate against him for his successful exercise of his right to a speedy trial. The First Circuit held that government did not breach the plea agreement by refusing to make the substantial assistance motion. The plea agreement did not obligate the government to file a § 5K1.1 motion before the filing was approved by the Substantial Assistance Committee. If the prosecutor left an impression that a request for approval to file a § 5K1.1 motion would be considered by the Committee based on defendant’s help in the drug investigation, then that promise was kept. The Committee was not told of defendant’s Speedy Trial Act motion or the dismissal of the first indictment. When the parties started to negotiate anew concerning the second indictment, the government told defendant it would not file a § 5K1.1 motion. Nonetheless, defendant decided to plead guilty and the government agreed not to appeal from the allowance of the speedy trial motion. Thus, at the time defendant pled guilty, it was clear that the government would not file a substantial assistance motion. U.S. v. Davis, 247 F.3d 322 (1st Cir. 2001).
1st Circuit holds that errors at plea colloquy did not affect defendant’s decision to plead guilty. (790) Defendant’s plea agreement erroneously said that count 2 exposed him to a mandatory sentence of five years, when in fact it carried a mandatory sentence of ten years under 18 U.S.C. § 924(c)(1)(B). The agreement also mistakenly stated that count 6 carried a statutory maximum of ten years, when in fact it carried a maximum penalty of only five years under § 924(a)(1)(B). These errors were repeated in defendant’s plea colloquy. By the time of sentencing, the probation department filed a corrected PSR, and the court sentenced defendant within those parameters. No one spotted the inconsistencies between the representations made to defendant and the sentence actually imposed. The First Circuit held that the error as to count 6 was harmless. The sentence actually imposed was not only within legal limits, but was substantially less than the mistaken maximum. The government conceded that the ten-year sentence imposed on count 2 was not harmless error. However, the error was easily corrected without needing to set aside defendant’s plea. Instead, the district court was instructed, on remand, simply to modify the sentence by reducing the imprisonment under count 2 to five years. The panel rejected defendant’s claim that he would not have pled guilty if he had been aware of these errors. Counts 1 and 3 each carried a maximum term of life imprisonment. It was unlikely that a more accurate description of the lesser charges would have influenced defendant’s decision to plead guilty. U.S. v. Perez-Carrera, 243 F.3d 42 (1st Cir. 2001).
1st Circuit agrees that defendant did not provide substantial assistance. (790) After an extensive hearing, the district court concluded that defendant had not provided substantial information, as required by the plea agreement and § 5K1.1. Defendant argued that the district court undervalued his cooperation and refused to consider evidence of gender-based animus against his attorney. The First Circuit upheld the district court’s finding that defendant did not provide substantial assistance. The judge meticulously reviewed and assessed each item of information that defendant provided and the government’s reasons for discounting its value. The intelligence contributed by defendant in some instances duplicated information the government had from other sources, involved small quantities of drugs, identified individuals who already were cooperating and, in some cases, led only to time-barred crimes. The fact that the government knew defendant had already turned over all of the information he possessed at the time he executed the agreement was not an implicit acknowledgement that he had already provided substantial assistance. The government’s retention of discretion to file the motion was an unambiguous signal that there still were hurdles to be cleared. Finally, it was not necessary to address the claim of gender-based animus because defendant did not meet the substantial assistance threshold. U.S. v. Doe, 233 F.3d 642 (1st Cir. 2000).
1st Circuit rules defendant had adequate knowledge of safety valve requirements. (790) Defendant’s binding Rule 11(e)(1)(C) plea agreement provided for a 87-month sentence, 33 months below his mandatory minimum sentence. The agreement was conditioned on defendant’s meeting the safety valve criteria in USSG § 5C1.2. In December 1997, the court accepted defendant’s guilty plea. In February 1999, after defendant failed to comply with the safety valve criteria, the court issued an order rejecting the 87-month sentence, stating that defendant was allowed to withdraw his plea. In April 1999, the government filed a motion to sentence defendant in accordance with his plea agreement, even though he had not complied with the safety valve. Four days later, the court “accepted” defendant’s guilty plea (despite having allowed him to withdraw his plea) and indicated its intent to sentence him in accordance with the plea agreement. In August 1999, defendant first notified the court of his desire to withdraw his guilty plea, claiming he did not understand the requirements of the safety valve provision. The district court denied his motion, and sentenced him to 87 months. The First Circuit held that defendant was not entitled to withdraw his plea. The sequence of events made it implausible that defendant did not understand his obligations under the safety valve. At the December 1997 hearing, the court specifically pointed out the provision, and defendant agreed that he understood it. When the court rejected the plea agreement in February 1999 because of noncompliance with the safety valve, defendant did not claim that he did not understand the provision. The panel was troubled by the court’s decision to “accept” a plea that it had previously treated as withdrawn. However, defendant never argued that this procedure was inappropriate. Even if there were plain error, defendant’s substantial rights were not affected. U.S. v. Santiago, 229 F.3d 313 (1st Cir. 2000).
1st Circuit holds that government’s statements about post-plea activities did not breach plea agreement. (790) Defendant pled guilty to selling unlicensed securities and mail fraud. In exchange, the government promised to recommend a 24-month sentence. The agreement’s sentencing calculation depended upon defendant’s receipt of a three-level reduction for acceptance of responsibility. After he pled guilty, the U.S. Attorney’s office learned that defendant was soliciting subscriptions for a financial newsletter by promising subscribers astronomical profits. The prosecutor informed the probation officer of this fact, and this information was reported in defendant’s PSR. At sentencing, the prosecutor recommended a 24-month sentence, but noted that defendant’s post-plea activity was not a “minor matter” and in fact mirrored defendant’s past fraudulent activity. The First Circuit held that the government did not breach the plea agreement either by advising the probation officer of defendant’s post-plea activities or by discussing such conduct at sentencing. The government has a duty to bring all facts relevant to sentencing to the judge’s attention. The information about defendant’s post-plea activity clearly was relevant. It bore an easily discernible relationship to the offense conduct and cast doubt on the sincerity of defendant’s claims of remorse. The prosecutor’s comments at sentencing came at the court’s urging and in direct response to the defense counsel’s attempt to put an innocent gloss on the post-plea activities. U.S. v. Saxena, 229 F.3d 1 (1st Cir. 2000).
1st Circuit holds that failure to advise that defendant could not withdraw plea was harmless error. (790) Defendant complained that the sentencing court violated Rule 11(e)(2) by failing to inform him, at the change of plea hearing, that he would not be able to withdraw his guilty plea if the court imposed a sentence above the recommended 24-month sentence. The First Circuit ruled that the failure to comply with Rule 11(e)(2) was harmless error. The court made plain statements at the plea hearing that put defendant on notice that it was not bound by the plea agreement. Moreover, paragraph nine of the agreement was entitled “Court Not Bound By Agreement.” The provision spelled out that the court was not wed to the government’s sentencing recommendations. At the plea hearing, defendant acknowledged that he had read the agreement completely, discussed it multiple times with his attorney, and fully understood it. U.S. v. Saxena, 229 F.3d 1 (1st Cir. 2000).
1st Circuit holds that failure to advise of supervised release and restitution was harmless error. (790) The district court did not warn defendant at his plea hearing of the possibility of supervised release and restitution, as required by Rule 11(c)(1). The omission represented a partial failure to address Rule 11’s “core concern” that the defendant have “knowledge of the consequences of the guilty plea.” However, even the partial failure to address a core concern is harmless under Rule 11(h) if it does not affect “substantial rights.” The First Circuit found that the court’s failure to warn of supervised release was harmless because defendant received a combined sentence of imprisonment and supervised release that was less than the maximum term of imprisonment of which he was warned. As to the restitution, although defendant was warned of the possibility of fines, the plea colloquy did not make clear that the monetary assessment could reach $908,108. However, there was no indication that the missing information led defendant to expect a lesser penalty than he actually received. Defendant never alleged that he was unaware that the restitution would be ordered at the time he entered his plea or that he pled guilty in reliance on that belief. At the arraignment, defendant was told that the maximum fines on each of the 25 counts ranged from $250,000 to $925,000. Finally, defendant affirmatively requested a restitution order at the time of his sentencing. U.S. v. Coviello, 225 F.3d 54 (1st Cir. 2000).
1st Circuit upholds refusal to permit plea withdrawal. (790) Defendant argued that his plea was involuntary because he did not understand the consequences of pleading guilty. He claimed that the district court misled him by telling him that he could face an enhanced sentence if the substance he possessed was found to be cocaine base, when in fact an increased sentence required an additional finding that the substance was crack, and hence an additional evidentiary burden for the government. The First Circuit found that this argument misunderstood the nature of defendant’s sentence. Defendant did not receive an increased guidelines sentence based on a finding that the substance was crack. Instead, he received a ten-year statutory minimum sentence for distributing more than 50 grams of cocaine base under 21 U.S.C. § 841(b). While the guidelines definition of “cocaine base” means only crack, see Note (D) to USSG § 2D1.1, the term “cocaine base” as used in § 841(b) includes all forms of cocaine base, including but not limited to crack. See U.S. v. Lopez-Gil, 965 F.2d 1124 (1st Cir. 1992). Thus, defendant’s sentence did not require a finding that the cocaine base was in crack form. Defendant’s proffered reason for seeking withdrawal stemmed more from garden-variety second thoughts and unhappiness with the court’s finding that the substance was over 50 grams of cocaine base, than from any lack of understanding at the time of the plea. U.S. v. Richardson, 225 F.3d 46 (1st Cir. 2000).
1st Circuit holds that court’s understatement of mandatory minimum was not harmless error. (790) The district court advised defendant that he faced a mandatory minimum sentence of five years. However, because the court found defendant responsible for an increased drug quantity, his mandatory minimum sentence was actually ten years. The First Circuit held that the district court’s understatement of the mandatory minimum sentence violated Rule 11(c)(1). Where drug quantity attribution is not determined until after a defendant’s guilty plea, the court is in “a tricky position” when it comes to accurately advising a defendant of the applicable mandatory minimum and maximum penalties. “This lack of certainty, however, does not relieve the court of its Rule 11(c)(1) responsibility” to correctly inform a defendant of those mandatory minimum and maximum penalties. The panel suggested that the court might advise a defendant as to the different mandatory minimum and maximums that could apply, depending on the quantity of drugs later attributed to the defendant. The Rule 11 violation was not harmless error. Both the prosecution and the plea agreement stated that defendant’s probable guideline range was 87 to 108 months, which actually was barred by a ten-year minimum. Defendant received no hint that a higher mandatory minimum might apply. It was sufficiently likely that defendant misjudged the consequences of his plea so that he should be permitted to withdraw his plea. U.S. v. Santo, 225 F.3d 92 (1st Cir. 2000).
1st Circuit holds that judge did not improperly participate in plea negotiations. (790) At sidebar, the judge explained that he was inclined to deny a severance motion, and then stated: “Why doesn’t he plead out, get the three levels he’s entitled to and then that will accomplish the severance, but that’s not for me to say…” The next day, defendant pled guilty. On appeal, defendant argued that his plea was not voluntary, because the court violated Fed. R. Crim. P. 11(e)(1) by participating in the plea negotiation process. He also contended that the court coerced him into pleading guilty by promising him a three-level reduction for acceptance of responsibility. The First Circuit rejected both arguments. There was a distinct qualitative difference between the court’s comments here and statements found to require vacation. First, the court’s comments did not take place in the context of plea negotiations discussions. The judge was speaking only to counsel, and his comments were followed immediately by a reminder that he held no opinion on any plea discussions. The judge did not threaten defendant with consequences if he did not plead guilty, express a preference as to one penalty or disposition, attempt to shape the terms of the agreement, and he reiterated his neutrality on any plea negotiations. The court did not coerce defendant to plead guilty by promising him a three-level acceptance reduction. The court provided defendant with correct sentencing information at the plea colloquy and ultimately sentenced defendant to 78 months, the lowest possible sentence in the range cited by the judge. U.S. v. Bierd, 217 F.3d 15 (1st Cir. 2000).
1st Circuit says court not required to advise defendant of all possible sentencing enhancements. (790) Defendant complained that the court neglected to inform him at his plea colloquy that he faced a likely enhancement under § 2S1.1(b) (1) due to his knowledge that the funds he was transmitting were drug proceeds. The First Circuit ruled that the district court did not err by not forewarning defendant of all possible sentencing enhancements he might face. See U.S. v. De Alba Pagan, 33 F.3d 125 (1st Cir. 1994) (holding that “the fact that a defendant misapprehends the likely guideline sentencing range does not constitute a fair and just reason for withdrawing a guilty plea”). The court informed defendant that it was highly unlikely that he would receive a sentence outside the applicable guideline range and ultimately sentenced defendant to the lowest penalty referenced as a possibility. U.S. v. Bierd, 217 F.3d 15 (1st Cir. 2000).
1st Circuit holds that government’s sentence recommendation did not breach plea agreement. (790) Defendant argued that the government induced him to cooperate and plead guilty by indicating that his sentence might be as low as 10 years, and then breached the commitment, or acted in bad faith, by recommending a 19-year sentence. The district court departed downward to 15 years. The First Circuit found this argument without merit. The prosecutor did indicate at some point in the plea bargaining process that to qualify for a recommendation as low as ten years, defendant would have to inculpate someone equivalent to a notorious Colombian drug figure named by the prosecutor. However, the government found that defendant’s cooperation was halting, initially incomplete and of limited value, although sufficient to justify the downward departure to 15 years. Defendant’s plea agreement reserved to the government complete freedom to recommend a particular sentence or make no recommendation at all. The agreement also contained an integration clause saying that it was the complete agreement between the parties and that no other promises had been made. Moreover, before sentencing, defendant made clear his disappointment with the government’s refusal to recommend a 10-year sentence, but never claimed this to be a breach of any agreement. Against this background, the claims of a breach, bad faith, or the need for an evidentiary hearing were close to frivolous. U.S. v. Cruz, 213 F.3d 1 (1st Cir. 2000).
1st Circuit holds that plea agreement did not bar safety valve relief. (790) The government conceded that defendant met the criteria for safety valve protection under USSG § 5C1.2 and 18 U.S.C. § 3553(f). However, it argued, and the district court agreed, that defendant’s plea agreement barred defendant from receiving safety valve protection. The agreement provided that, aside from those adjustments that were expressly delineated in the agreement, “no further adjustments to the defendant’s total offense level shall be made.” The First Circuit held that the plea agreement did not bar the court from granting safety valve relief. First, the term “adjustments,” when used in the federal sentencing context, does not encompass the safety valve provision. Chapter Three of the Guidelines contains the “adjustments” that may be made in determining a defendant’s adjusted offense level. The safety valve provision is contained in Chapter Five; it is not intended to affect the calculation of the defendant’s offense level per se, but rather, to operate as a limitation on the applicability of mandatory minimum sentences. Moreover, the safety valve, when it applies, is mandatory. Thus, in a non-binding plea agreement, the government cannot contract around the safety valve; the most it can do is attempt to persuade the sentencing court that the provision does not apply. The court erred as a matter of law in not making an independent determination of whether the safety valve applied. U.S. v. Ortiz-Santiago, 211 F.3d 146 (1st Cir. 2000).
1st Circuit rules defendant did not present fair and just reason to support plea withdrawal. (790) On the day of the sentencing hearing, defendant asked the district court to stay sentencing and so that he could move to withdraw his plea. He claimed that the district court’s decision to include Puerto Rico convictions as predicate career offender crimes undermined his rationale for entering into his plea agreement. The First Circuit upheld the district court’s denial of the motion for a continuance. The court treated defendant’s motion for a continuance as a motion to withdraw his guilty plea. Thus, he had the burden of showing a fair and just reason for permitting the retraction. Defendant could not meet this burden. First, it was not plausible that he somehow “forgot” his Puerto Rico convictions. More likely, he failed to understand how they would affect his sentencing range. However, this is not a fair and just reason for abandoning a guilty plea. The record contained no reason for why defendant waited until the last moment to challenge his plea. Defendant did not assert his innocence. Finally, he did not challenge the adequacy of the change-of-plea colloquy or suggest a violation of Rule 11. U.S. v. Torres-Rosa, 209 F.3d 4 (1st Cir. 2000).
1st Circuit says court may allow defendant to argue for departure despite limits in plea agreement. (790) Defendant agreed as part of his plea agreement that he would only seek a downward departure on aberrant behavior grounds. The district court granted the aberrant behavior departure, but the appellate court reversed. At resentencing, defendant sought a downward departure to reflect his post-sentence rehabilitation. The government argued that defendant was barred by the agreement from requesting a departure on this basis. The district court ruled that it could consider such a departure because the sentencing agreement did not bind it. The court then granted defendant a departure based on post-offense rehabilitation. The First Circuit held that the district court did not err by allowing defendant to argue for a downward departure on a basis outside the terms of the plea agreement. The judge found whether defendant had breached the agreement and whether it could grant the government specific performance to be “somewhat beside the point” because the court was not bound by recommendations in the parties’ sentencing agreement. See Fed. R. Crim. P. 11(e)(1)(B). The court thus indicated that regardless of whether it could grant specific performance for a defendant’s breach, it would not do so in this case because it desired to consider the merits of defendant’s claimed entitlement to a downward departure. Because the government had sufficient notice of defendant’s argument, the court acted within its discretion. U.S. v. Bradstreet, 207 F.3d 76 (1st Cir. 2000).
1st Circuit holds that pre-agreement promise did not obligate government to file § 5K1.1 motion. (790) Despite defendant’s cooperation, the prosecutor elected not to file a § 5K1.1 departure motion. Defendant claimed the government obligated itself to file such a motion by assuring him, in the presence of counsel, that it would move for a departure if defendant would “tell the truth, be available, and cooperate.” The First Circuit held that the representation, even if made, did not survive the execution of the plea agreement. The provision in the agreement stating that defendant was not expected to “make a case” against anyone, but merely provide “full, complete and truthful cooperation,” did not import the prosecutor’s promise into the agreement. “Full, complete, and truthful cooperation” is not the same as substantial assistance. Substantial assistance also requires an analysis of the significance and utility of the information provided, the nature and extent of the assistance, and the timeliness of the proffer. Moreover, the plea agreement contained an unqualified integration clause stating that the government “has made no promises or representations except as set forth in this plea agreement.” U.S. v. Alegria, 192 F.3d 179 (1st Cir. 1999).
1st Circuit remands where colloquy led defendant to misunderstand consequences of his guilty plea. (790) At defendant’s plea hearing, all the parties and the district court believed that defendant was preliminarily eligible for safety valve protection, and thus could receive a sentence as low as 30 months. Without safety valve protection, defendant would be subject to a mandatory minimum sentence of 60 months. In fact, at the time of the plea hearing, defendant was ineligible for the safety valve, because he had more than one criminal history point. All the participants were aware that defendant had one prior domestic violence conviction.. However, they did not realize that defendant had committed the current offense while on probation. Under § 4A1.1(d), this added two more points to his criminal history score, making him ineligible for safety valve protection. The First Circuit set aside the guilty plea, finding defendant reasonably misunderstood the consequences of his guilty plea. In explaining the terms of the plea to defendant, the court at two points affirmatively represented to defendant that his criminal history made him eligible for sentencing under the safety valve, and pointed out to defendant more than once that he would be obligated to debrief the government in order to comply with the safety valve. Defendant expressed concerns about the length of his sentence, and was told that he would be eligible for a lighter sentence than actually could receive. This misunderstanding implicated one of Rule 11’s core concerns. U.S. v. Hernandez-Wilson, 186 F.3d 1 (1st Cir. 1999).
1st Circuit says misimpression about possible guideline range did not warrant plea withdrawal. (790) Defendant claimed that the district judge should have allowed him to withdraw his guilty plea because he did not understand that dismissal of a § 924(c) count left the sentencing judge free to apply a firearm enhancement under § 2D1.1(b)(1). The First Circuit noted that “[a] guilty plea is not vulnerable merely because the defendant’s own expectations as to the guideline range go amiss.” The two-level enhancement was a far cry from the mandatory five-year consecutive sentence that would have followed automatically from a § 924(c) conviction. Defendant received exactly what the government promised – a dismissal of the § 924(c) charge. U.S. v. Aker, 181 F.3d 167 (1st Cir. 1999).
1st Circuit does not remand where companion case found defendant did not provide substantial assistance. (790) As part of a plea agreement, the government promised to consider filing a § 5K1.1 motion or a Rule 35(b) motion in two cases against defendant. The government ultimately declined to move for a departure in either case, noting that it had explicitly retained in the agreement “sole discretion” over whether to file the motion, and that defendant had started to cooperate too late. Defendant argued that a hearing was required to determine whether the government breached paragraph 5 of the agreement, which stated that “the defendant’s failure to ‘make a case’ shall not relieve the government of exercising its discretion” under either § 5K1.1 or Rule 35(b). The First Circuit found some tension between the government’s paragraph 5 promise and counsel’s statement that defendant’s cooperation came too late. Under other circumstances, it might have remanded to the district court to hold an evidentiary hearing on the question of whether the government violated paragraph 5. However, the district judge in a companion case recently found, after an evidentiary hearing, that defendant did not provide substantial assistance to the government. This finding, although made by a different judge, was binding as between defendant and the government unless set aside on appeal. U.S. v. Doe, 170 F.3d 223 (1st Cir. 1999).
1st Circuit does not decide if plea agreement barred government from supporting enhancement on appeal. (790) Defendant pled guilty to bank robbery. As part of the plea agreement, the government promised to refrain “at sentencing” from recommending that defendant receive a § 2B.31(b)(2)(F) enhancement for making an express threat of death during the robberies. Although the government abided by its agreement, the district court nevertheless imposed the enhancement. On appeal, defendant insisted that under the plea agreement the government was barred from arguing that the enhancement was proper. The First Circuit found it unnecessary to determine whether the government breached the plea agreement since with or without the government’s advocacy the court was obliged to consider whether the district court correctly imposed the enhancement. U.S. v. Burns, 160 F.3d 82 (1st Cir. 1998).
1st Circuit holds defendant may not withdraw plea after choosing specific performance. (790) The government promised as part of defendant’s plea agreement to recommend that he not receive a managerial role adjustment. The government breached this promise. Defendant asked the appellate court to vacate his 87-month sentence and order specific performance of the plea agreement. The First Circuit granted defendant the relief he sought, and remanded for resentencing before a different judge. Defendant then moved to withdraw his guilty plea on the ground that the plea itself had been tainted by the government’s breach of the agreement. The district court refused, and sentenced defendant to 71 months. The First Circuit held that the refusal to allow defendant to withdraw his plea was not an abuse of discretion. Defendant already received precisely the relief he requested for the government’s breach of the plea agreement–specific performance of the agreement. When the prosecution breaches a plea agreement, the defendant is entitled to either specific performance or an opportunity to retract his plea. Defendant was not entitled to both. U.S. v. Velez Carrero, 140 F.3d 327 (1st Cir. 1998).
1st Circuit holds defendant’s refusal to give name of person who supplied cocaine breached plea agreement. (790) The government promised as part of defendant’s plea agreement to recommend a downward departure if defendant’s cooperation was deemed substantial. The agreement further warned defendant that if she failed to completely fulfill her obligations under the agreement, the government would be freed from all obligations under the agreement. While on bail defendant tested positive twice for cocaine use. This impaired her usefulness as a witness. In addition, she refused to tell the government who had supplied her with cocaine. The government refused to move for a § 5K1.1 departure. The First Circuit held that defendant breached the plea agreement by refusing to provide the names of those who supplied her with cocaine while she was on bail. The agreement required her to provide all information known to her regarding any criminal activity. Therefore, the government was released from its obligation to move for a § 5K1.1 departure. It was not necessary to determine whether defendant’s drug use while on bail also breached the agreement. In the future, the government should explicitly warn defendants that they are obliged to refrain from any further criminal activity, and that further criminal activity would be regarded as failure to provide substantial assistance. U.S. v. Garcia-Velilla, 122 F.3d 1 (1st Cir. 1997).
1st Circuit holds that failure to advise of mandatory minimum was harmless error. (790) Defendant pled guilty to possessing with intent to distribute 50 or more grams of crack. During the plea colloquy, the district court failed to mention, in violation of Rule 11, that the offense carried a mandatory minimum 10-year sentence. The district judge determined that defendant had a guideline range of 135-168 months, and imposed a 135-month sentence. The First Circuit held that the failure to advise defendant of the mandatory minimum ten-year sentence was harmless error since it did not impair defendant’s substantial rights. Since the court imposed a sentence 15 months longer than the mandatory minimum, the minimum sentence had no relevance to, and no actual effect upon, defendant’s sentence. U.S. v. McDonald, 121 F.3d 7 (1st Cir. 1997).
1st Circuit holds judge’s failure to warn that defendant cannot withdraw plea was harmless. (790) Defendant argued for the first time on appeal that the court committed reversible error when it failed to advise him at his plea hearing that he would not have the right to withdraw his plea if the court did not accept the sentencing recommendation. The First Circuit held that the court’s Rule 11(e)(1)(B) violation was harmless error. Although generally issues not raised before the district court are deemed to be waived, an appellate court will determine compliance with Rule 11 if the record is sufficiently developed. Although defendant raised a core concern of Rule 11, under the circumstances here the Rule 11 violation did not amount to a substantial defect in the plea proceedings and did not adversely affect defendant’s substantial rights. The court did warn defendant that it was not obligated to follow the government’s 97-month sentencing recommendations, and that the maximum sentence it could impose was 108 months. Given defendant’s willingness to plead guilty in exchange for a 97-month sentence, it was highly unlikely that, had he been properly warned, he would have chosen to go to trial rather than risk the possibility of a 108-month sentence. U.S. v. Noriega-Millan, 110 F.3d 162 (1st Cir. 1997).
1st Circuit upholds refusal to permit plea withdrawal. (790) The First Circuit upheld the court’s refusal to permit the plea withdrawal. The district court conducted a comprehensive inquiry under Rule 11. A transcript of the colloquy indicated that defendant clearly understood the possible implications of his plea. Defense counsel testified at the sentencing hearing that he had spent an hour and a half going over the plea agreement with defendant, and that defendant refused to take any copies of the agreement or the PSR. The fact that the colloquy consisted of leading questions to which defendant merely had to answer “yes” did not invalidate the colloquy. Defendant’s 11th hour protestation of innocence lacked merit. He did not claim innocence at the plea hearing, and even clarified certain points regarding the offense. The court did not abuse its discretion in refusing to hold an evidentiary hearing on his ineffective assistance claim. U.S. v. Isom, 85 F.3d 831 (1st Cir. 1996).
1st Circuit holds that promise to recommend no enhancement was breached by government’s neutral position. (790) The government promised in defendant’s plea agreement “to recommend that no adjustment pursuant to § 3B1.1 of the sentencing guidelines be made.” At sentencing, however, the government informed the court that it had “agreed to make no suggestion to the court as to the role of the defendant in the offense.” The First Circuit held that the government’s neutral position violated the plea agreement. Defendant bargained for the “prestige of the government and its potential to influence the district court.” U.S. v. Velez Carrero, 77 F.3d 11 (1st Cir. 1996).
1st Circuit says court’s statement at plea hearing did not obligate it to award additional § 3E1.1 reduction. (790) At defendant’s plea hearing, the court stated that defendant could “pretty well count on” receiving an additional one point reduction for acceptance of responsibility. Defendant argued that the court should have been bound by this statement because no new factors were raised before sentencing to justify the court’s change of mind. The First Circuit found that the court was not bound by its earlier statement. By the time of sentencing, the court had further time to reflect, read the presentence report, and deemed it unwise policy to automatically award the extra reduction when the timeliness element was so utterly lacking. Defendant did not plead guilty until the day of trial, after the jury was summoned and the government prepared its case. U.S. v. Martinez-Martinez, 69 F.3d 1215 (1st Cir. 1995).
1st Circuit says government could refuse to make § 5K1.1 motion based on polygraph test. (790) As part of defendant’s plea agreement, the government agreed to move for a § 5K1.1 departure, contingent on defendant’s truthful assistance. Defendant agreed to take a polygraph test if requested by the government. If in the opinion of the examiner, defendant’s answer’s indicated deception, defendant would be in breach of the agreement. Defendant submitted to a polygraph and the examiner found that his answers showed deception. Accordingly, the government refused to move for a departure. The First Circuit held that the plea agreement permitted the government to refuse to make a § 5K1.1 motion based on the polygraph results. The plea agreement’s polygraph requirement was not void. Defendant agreed to the polygraph’s use as the standard by which his performance would be measured by the government. U.S. v. Santiago-Gonzalez, 66 F.3d 3 (1st Cir. 1995).
1st Circuit affirms despite failure to advise defendant of mandatory minimum. (790) Defendant’s plea agreement stated that his offense carried a mandatory minimum five year term of imprisonment and minimum four year term of supervised release. In an extensive Spanish-language questionnaire defendant completed before his plea hearing, he correctly stated the mandatory minimums. During the plea hearing, however, the court neglected to advise defendant about these mandatory minimums. The First Circuit refused to vacate defendant’s sentence despite the court’s failure to comply with Rule 11. It was unlikely that counsel, after advising defendant to enter the plea agreement and assisting him in completing the court’s questionnaire, told him, contrary to both documents, that the court could impose something less than the mandatory minimums. Defendant’s attempt to set aside the plea was belated, and denied the government an opportunity to make a record as to whether or not defendant was misinformed by counsel about the sentencing consequences of his plea. U.S. v. Lopez-Peneda, 55 F.3d 693 (1st Cir. 1995).
1st Circuit outlines standard of review for breach of plea agreement claims. (790) Defendant argued that the government breached its promise in his plea agreement not to oppose an acceptance of responsibility reduction. Defendant argued that the appellate court’s review was de novo and government argued that it was clear error. The First Circuit outlined the standard of review in breach of plea agreement cases. First, there are factual questions of what the terms of the agreement are and what the government’s conduct was. If disputed, these factual questions are to be resolved by the district court. The district court’s determinations are reviewed by the appellate court for clear error. Second, there is the question of whether the government’s conduct breached the plea agreement. This is a legal question, and an appellate court’s review is plenary. The only question here was whether the government’s undisputed conduct breached the plea agreement. This was a legal question to be reviewed de novo. U.S. v. Clark, 55 F.3d 9 (1st Cir. 1995).
1st Circuit finds government’s memo breached agreement not to oppose acceptance of responsibility reduction. (790) The government agreed as part of defendant’s plea agreement that it would not oppose a three-level acceptance of responsibility reduction. However, before sentencing, the government filed a memorandum stating that at the time of the plea agreement it was not aware that defendant had obstructed justice, and that this did not appear to be an “extraordinary” case where a defendant who obstructed justice deserved an acceptance of responsibility reduction. The First Circuit held that the government’s sentencing memorandum breached its agreement not to oppose an acceptance of responsibility reduction. The government made clear its position that no reduction was appropriate. Although the government was entitled to advise the court of additional facts that came to its attention, the government did more here. It indicated that it opposed the adjustment and argued against it by stating that this was not an “extraordinary” case. U.S. v. Clark, 55 F.3d 9 (1st Cir. 1995).
1st Circuit holds that upward departure motion did not violate plea agreement. (790) Defendant argued that the government’s motion for an upward departure was a breach of his plea agreement and an earlier prosecutor’s statement that he would not to seek a departure. The Second Circuit held that the upward departure motion did not violate the plea agreement or the prosecutor’s oral statement. A previous prosecutor told defense counsel on one occasion that the government was not going to move for an upward departure. However, the alleged promise was not included in the later filed plea agreement that purported to be a complete integration of all promises made by the government. The agreement expressly stated that the government’s commitment was to drop two counts, and that defendant understood that there were no further promises. At the Rule 11 hearing, neither defendant nor his counsel referred to an oral promise by the government not to move for a departure. U.S. v. Connolly, 51 F.3d 1 (1st Cir. 1995).
1st Circuit holds that Rule 11 violations did not entitle defendant to withdraw plea. (790) The district court violated Rule 11(c)(1) by incorrectly advising defendant that the maximum penalty for a firearms charge was 10 years’ imprisonment, when in fact he was subject to a mandatory minimum of 15 years’ imprisonment. The court also failed to advise defendant that supervised release might be imposed or that he might be liable to pay restitution. The Second Circuit found the errors harmless and defendant was not entitled to withdraw his plea. The firearms charge was dismissed Defendant received 10 years in prison and five years supervised release on the other charges. This was much less than the 35-year sentence he had been led to believe he faced. The failure to advise defendant of supervised release was harmless because the combined sentence of imprisonment and supervised release was less than the maximum term of imprisonment described to him. The failure to advise of restitution was harmless because the amount ordered was less than the potential fine of which he was warned. U.S. v. Raineri, 42 F.3d 36 (1st Cir. 1994).
1st Circuit says miscalculation of guideline range did not entitle defendant to withdraw plea. (790) Defendant challenged the district court’s denial of his request to withdraw his guilty plea. The 1st Circuit affirmed the denial of the motion, since defendant essentially claimed that he miscalculated the severity of his guideline range. The fact that a defendant misapprehends his likely guideline range is not a fair and just reason for withdrawing a guilty plea. Defendant knew at the time he pled that he could face an enhanced offense level based on an unresolved weapons charge. Defendant waited four months after pleading and two months after his PSR was released before moving to withdraw his plea. He also admitted his guilt. U.S. v. Gonzalez-Vazquez, 34 F.3d 19 (1st Cir. 1994).
1st Circuit says misunderstanding about relevant conduct did not require withdrawal of plea. (790) Defendant claimed he did not understand when he pled guilty, that his sentence would be based in part on relevant conduct. The 1st Circuit held that this claim did not entitle him to withdraw his guilty plea. The district court made it clear that defendant would be sentenced in accordance with the guidelines, informed him of the maximum possible punishment, and told him that relevant conduct would be determined at sentencing. A defendant’s claim that he misjudged the consequences of his guilty plea or his likely guideline range does not present a fair and just reason for withdrawing a guilty plea. U.S. v. De Alba Pagan, 33 F.3d 125 (1st Cir. 1994).
1st Circuit denies motion to withdraw plea where defendant received substantial assistance departure. (790) Defendant’s plea agreement provided that in return for his cooperation, the government would dismiss three counts and seek a “lawful sentence.” The agreement did not obligate the government to seek a substantial assistance departure. Defendant provided some assistance, but was forced to stop after the district court ordered the cessation of defendant’s active law enforcement cooperation. The 1st Circuit upheld the denial of defendant’s motion to withdraw his guilty plea. The government ultimately dismissed the three counts and moved for a downward departure, which the district court granted. Thus, defendant received the benefit of his bargain, plus a substantial assistance departure. U.S. v. Laliberte, 25 F.3d 10 (1st Cir. 1994).
1st Circuit finds plain error in upward departure where government breached plea agreement. (790) Defendant argued for the first time on appeal that the government breached his plea agreement in recommending an upward departure from the applicable sentencing range. The 1st Circuit decided to review the issue despite defendant’s failure to raise it below because it was sufficiently exceptional. The issue was one of law, as there was no dispute that the plea agreement was breached. The issue was susceptible of resolution on the present record; the only question was the appropriate remedy. Most importantly, deferral of the claim might result in a miscarriage of justice. The government’s promise to recommend a sentence within the guideline range was a significant factor in inducing defendant’s plea. Specific performance of the plea agreement was appropriate under the circumstances. U.S. v. Mercedes-Amparo, 980 F.2d 17 (1st Cir. 1992).
1st Circuit says testimony about extent of cooperation did not breach plea agreement. (790) Defendant’s plea agreement obligated the government to make a downward departure motion under section 5K1.1 based on her cooperation. Defendant argued that the government breached the agreement by presenting the testimony of a DEA agent as to the extent of her cooperation. The agent testified that defendant deserved a downward departure for her cooperation, but that defendant had more to offer the government than she gave. The 1st Circuit rejected defendant’s claim that this testimony violated the plea agreement. The government fully complied with its promise to request a downward departure under section 5K1.1. The testimony of the DEA agent was offered to assist the district court in determining the extent it should depart from the guidelines. It was appropriate for the government to provide the court with information as to the material facts surrounding defendant’s cooperation. U.S. v. Gonzalez-Perdomo, 980 F.2d 13 (1st Cir. 1992).
1st Circuit says erroneous advice about sentence if defendant went to trial was not grounds to withdraw plea. (790) Defendant contended that he had presented a “fair and just” reason for the withdrawal of his guilty plea based on his attorney’s erroneous advice that he would face a longer sentence if he went to trial. In fact, defendant would have most likely received the same mandatory minimum 15 year sentence that he received after pleading guilty. The 1st Circuit affirmed the denial of the motion to withdraw the guilty plea. First, the plea colloquy indicated that defendant pled guilty primarily because he “wanted to get it over with,” not because he hoped for a sentencing advantage. Second, counsel made defendant aware that a guilty plea would bring two minor sentencing benefits: the prosecutor would forego the right to ask for a sentence longer than 15 years, and defendant could ask for sentence to run concurrently with a state prison sentence which defendant was then serving. U.S. v. Desmarais, 967 F.2d 17 (1st Cir. 1992).
1st Circuit affirms that defendant breached his plea agreement by testifying untruthfully before a grand jury and during a trial. (790) The 1st Circuit affirmed the district court’s determination that defendant violated the terms of his plea agreement and consequently released the government from its obligations under it. The plea agreement required defendant to testify fully and truthfully at all proceedings at which his testimony was requested. Defendant had performed a controlled buy for the government. However, the drug seller and two other witnesses testified that several days after the sale, defendant returned with a gun and demanded more cocaine from the seller. Defendant denied this at a grand jury proceeding, during a subsequent trial and at his sentencing hearing. The district court held an evidentiary hearing on the issue of whether or not defendant had violated his plea agreement, properly allocating the burden of proof to the government to show that there had been a substantial breach. The district court could properly conclude that defendant violated the terms of his plea agreement. Although defendant argued that the government breached the plea agreement by releasing his name to the press as a police informant, the district court was entitled to disbelieve his testimony in light of his other false testimony. U.S. v. Tilley, 964 F.2d 66 (1st Cir. 1992).
1st Circuit upholds denial of motion to withdraw guilty plea where defendant had nine months to consider plea. (790) The 1st Circuit found no abuse of discretion in the district court’s denial of defendant’s motion to withdraw his guilty plea. Defendant signed a plea agreement on July 6, entered his plea October 5 and received his presentence report November 23. By February, defendant was on notice of the government’s position that defendant had breached the plea agreement and thus intended to recommend a sentence up to the statutory maximum. Defendant did not move to withdraw his plea until the morning of sentencing, April 10. In light of the fact that defendant had nine months during which to consider the consequences of his guilty plea, the absence of a viable defense, his breach of the plea agreement and the apparent lack of evidence pointing to his innocence, the district court did not abuse its discretion in denying defendant’s motion to withdraw his guilty plea. U.S. v. Tilley, 964 F.2d 66 (1st Cir. 1992).
1st Circuit rules government was not required to advise court of defendant’s cooperation because defendant never requested it. (790) Defendant’s plea agreement provided that at the request of defendant, the U.S. Attorney’s office would advise any entity or person of defendant’s cooperation. The 1st Circuit ruled that the government failure to advise the sentencing court of defendant’s cooperation was not a breach of promise because defendant never requested the government to so advise the court. The agreement clearly limited the government’s obligation to offer its views about defendant’s cooperation to those instances where the defendant made a request. Moreover, even if the government had so advised the court, it would not have changed defendant’s sentence. Defendant already received a sentence at the bottom of his guideline range. A sentencing court may not depart downward below the guideline range based upon a defendant’s cooperation in the absence of a government motion under section 5K1.1. U.S. v. Atwood, 963 F.2d 476 (1st Cir. 1992).
1st Circuit upholds its jurisdiction to review whether government breached plea agreement. (790) Defendant argued that the government breached the terms of his plea agreement when it failed to advise the sentencing court of the nature and extent of his cooperation. Had the government done so, the sentencing court might have departed downward. The 1st Circuit upheld its jurisdiction to consider this issue. This was not an appeal of a district court’s failure to depart, but rather a claim that the government breached a material term of defendant’s plea agreement. An appellate court has jurisdiction, on direct review, to consider an appeal that seeks to determine whether the government satisfactorily complied with the terms of a plea bargain. U.S. v. Atwood, 963 F.2d 476 (1st Cir. 1992).
1st Circuit finds no breach of plea agreement despite incorrect estimate of guideline range. (790) The 1st Circuit rejected defendant’s contention that the government breached his plea agreement, despite the inaccurate estimate of his guideline range contained in the agreement. The government promised to recommend a sentence at the bottom of the applicable guideline range and did so; however that range was 21 to 24 months rather than the 15 to 21 months estimated in the plea agreement. The agreement used the non-promissory word “estimate” in describing the length of defendant’s possible sentence, and specifically stated that defendant’s actual sentence was within the discretion of the sentencing judge. There was no reason to believe that the government lied in presenting its estimate. U.S. v. Oyegbola, 961 F.2d 11 (1st Cir. 1992).
1st Circuit rules that government breached plea agreement by supporting higher sentence. (790) In the plea agreement, the government agreed to recommend a 36-month sentence and advise the court of the extent of defendant’s cooperation. However, as a result of a role enhancement under section 3B1.1, the guideline range was 46 to 57 months. The 1st Circuit ruled that the government breached the plea agreement by failing to recommend the 36-month sentence. Although the prosecutor informed the court of the agreement and the government’s promise to recommend a 36-month sentence, the prosecutor never affirmatively recommended the 36-month sentence, and her comments undercut such a recommendation. She paid “lip service” to the agreement and then emphasized defendant’s supervisorial role in the offense and urged the judge to impose a lengthy period of incarceration. Her references to the agreement were grudging and apologetic. While a prosecutor normally need not present promised recommendations to the court with any particular degree of enthusiasm, it is improper for the prosecutor to inject material reservations about the agreement to which the government has committed itself. Moreover, the prosecutor failed to mention the details of defendant’s cooperation. U.S. v. Canada, 960 F.2d 263 (1st Cir. 1992).
1st Circuit holds that amended indictment did not limit district court’s ability to consider relevant conduct. (790) Defendant and a co-conspirator were charged with conspiracy to distribute cocaine from an unknown date until November 29, 1990. As part of defendant’s plea agreement, the government amended the indictment to reflect that the charged conspiracy ended August 2, 1990. The plea agreement did not represent what effect, if any, the amended indictment would have on defendant’s sentence. The 1st Circuit rejected defendant’s claim that it violated his plea agreement for the district court to consider drugs involved in transactions that occurred after August 2. Any expectation that the sentence would not be based upon the post-August 2 drugs was not reasonable. The plea agreement itself contained no such provision, and defendant admitted during the plea hearing that nothing had been omitted from the agreement. The plea agreement recited that no promises or inducements outside the agreement had been made. The district court took pains to insure that defendant was aware that the court was not bound by the government’s sentencing recommendation. U.S. v. Garcia, 954 F.2d 12 (1st Cir. 1992).
1st Circuit orders resentencing where prosecution’s sentence recommendation breached plea agreement. (790) As part of the plea agreement, the government agreed to recommend 12 months. The presentence report, however, suggested a higher offense level, and at sentencing, the prosecution recommended a sentence in accordance with the presentence report. Defendant objected and the hearing was continued. The prosecution withdrew its original recommendation and recommended 12 months. Defendant argued that this was ineffective to cure the breach because the judge was aware of the prosecution’s “real” position. He demanded recusal and specific performance, declining the opportunity to withdraw his plea. The judge found no breach of the plea agreement, and sentenced him to three years in prison. The 1st Circuit reversed, and since defendant had already served more time than the government agreed to recommend and was scheduled to be released soon, the court ordered the district court to resentence defendant to time served. U.S. v. Kurkculer, 918 F.2d 295 (1st Cir. 1990).
1st Circuit holds government’s description of offense did not violate plea agreement to recommend low end of range. (790) The defendant argued that the government made an “end run” around its plea agreement to recommend the low end of the guideline range, by telling the court about the seriousness of the offense. The 1st Circuit disagreed. The government had in fact recommended the lowest sentence within the applicable range. However, the government also had a duty to bring all relevant factors to the sentencing court’s attention. The court found that the government’s comments on the superior purity of the heroin involved and its characterization of the offense as “very serious” did not constitute an “end run” around the recommendation. U.S. v. Mata-Grullon, 887 F.2d 23 (1st Cir. 1989).
2nd Circuit holds that prosecutor’s deviation from sentencing estimate was not plain error. (790) Defendant stipulated in his plea agreement that his offense involved 15 grams or more of cocaine. In conformity with U.S. v. Pimentel, 932 F.3d 1029 (2d Cir. 1991), the government included in the plea agreement its estimate of a likely Guidelines sentencing range of 120-135 months. However, the PSR determined that defendant’s offense involved 15 kilograms of cocaine and seven kilograms of heroin, and that his guideline range was 210-262 months. At sentencing, defendant objected to the inclusion of the heroin, while the government advocated a sentence based on the seven kilograms of heroin, in addition to the cocaine. For the first time on appeal, defendant contended that the government violated his plea agreement by recommending a sentence higher than the range estimated to be applicable at the time of his plea. Because the caselaw was conflicting on whether the prosecutor’s deviation from a Pimentel estimate permitted a defendant to withdraw his plea, the Second Circuit found no plain error. U.S. v. MacPherson, 590 F.3d 215 (2d Cir. 2009).
2nd Circuit finds prosecutor did not breach plea agreement by supporting increase. (790) In U.S. v. Pimentel, 932 F.3d 1029 (2d Cir. 1991), the Second Circuit urged the government, in making plea agreements, to provide estimates of the likely guideline range. Here, the government followed the Pimentel suggestion and estimated a likely guideline range of 27-33 months. However, the PSR recommended a four-level leadership enhancement, with a guideline range of 41-51 months. At the sentencing hearing, the prosecutor supported this enhancement. The Second Circuit held that the prosecutor did not breach the plea agreement by supporting the enhancement that was not mentioned in its Pimentel estimate. The plea agreement clearly said that the range in the agreement was an estimate, and warned that the government was likely to advocate for a higher sentence. There was no suggestion that the government acted in bad faith—the prosecutor simply failed to notice the applicability of § 3B1.1(a). Moreover, defendant suffered no prejudice. The district court found that the heinous cynicism and cruelty of defendant’s crime called for an above-guideline sentence, eight years, and thus any dispute about the guideline calculation was “academic.” U.S. v. Habbas, 527 F.3d 266 (2d Cir. 2008).
2nd Circuit remands to different judge where prosecution breached plea agreement. (790) In defendant’s plea agreement, the government agreed “not to oppose” a recommendation that the court grant defendant a two-level acceptance of responsibility reduction, and agreed to move for an additional one-level reduction. The Second Circuit found that the government breached this agreement. First, it stated that it adopted the findings of the PSR, which advocated a higher sentence than the parties agreed. In addition, in response to defendant’s objections to the PSR, the government wrote that defendant was attempting to limit his conduct, which “leads the government to question whether the defendant had truly accepted responsibility” under § 3E1.1. The government concluded that defendant’s objections “raises questions on the issue of acceptance.” There is no principled distinction between the government voicing outright opposition to an acceptance of responsibility reduction and stating that defendant’s conduct was “troubling” and “raises questions on the issue of acceptance.” The panel remanded to a different judge, since if the court again were to deny the reduction, there was no way to be certain the government’s breach had no effect on that determination. U.S. v. Griffin, 510 F.3d 354 (2d Cir. 2007).
2nd Circuit holds that defendant may not withdraw plea based solely on changes caused by Booker. (790) Defendant asked to withdraw his guilty plea because he entered into it in the false belief that the U.S. Sentencing Guidelines were mandatory. In U.S. v. Morgan, 406 F.3d 135 (2d Cir. 2005), the Second Circuit held that a defendant who has pled guilty pursuant to a plea agreement that includes an enforceable waiver of the right to appeal his sentence may not challenge his sentence based on the subsequent revelations in Booker. The panel declined, however, to reach the question as to whether a defendant who, prior to Booker, pled guilty under an agreement that included a waiver of the right to appeal may seek to withdraw his plea based on alleged mistake as to the mandatory nature of the guidelines. The Second Circuit answered that question here, holding that defendant who, prior to January 12, 2005, entered an otherwise enforceable plea agreement that included a waiver of the right to appeal a sentence may not seek to withdraw his plea based on alleged mistake as to the mandatory nature of the guidelines. The fact that defendant did not anticipate the changes in federal sentencing law did not change the reliability of his plea, and he was not entitled to withdraw his plea simply because he discovered long after the plea was accepted that he miscalculated “the likely penalties attached to alternative courses of action.” U.S. v. Roque, 421 F.3d 118 (2d Cir. 2005).
2nd Circuit says mutual mistake as to proper guideline range did not render plea agreement void. (790) Defendant argued that the existence of a mutual mistake as to the likelihood of a non-incarceratory sentence made his plea agreement unenforceable and required the court to allow him to withdraw his plea. The Second Circuit disagreed. The parties did stipulate to their understanding of the particular guidelines calculations and adjustments, as well as to the imprisonment range that would result. However, they also expressly took into account the possibility that those understandings might not prevail. The agreement stated that the parties understood that the sentence to be imposed was to be determined solely by the court, and that defendant would have no right to withdraw his plea should the sentence imposed by the court be different than calculated in the agreement. An agreement that has made such express provisions with respect to the possibility of a mistaken predicate as to sentencing calculations is not a proper candidate for rescission on the ground of mutual mistake. U.S. v. Rosen, 409 F.3d 535 (2d Cir. 2005).
2nd Circuit holds that defendant’s appeal waiver was enforceable against his Booker claim. (790) Defendant requested that the appellate court vacate his sentence in light of U.S. v. Booker, 543 U.S. 220 (2005). However, his plea agreement contained a waiver of his right to appeal his sentence. The Second Circuit held that for a defendant who seeks relief from his sentence, but did not in a timely fashion seek relief from the underlying plea, an appeal waiver is enforceable and forecloses the right to appeal under Booker. The parties both received their bargained-for benefits: defendant avoided exposure to additional counts, and the government was ensured that defendant received a sentence within a range it believed was satisfactory. There was no indication that the parties intended for the appeal waiver not to apply to issues arising after, as well as before, the waiver. The fact that defendant did not have knowledge of his right under Booker made no material difference. U.S. v. Morgan, 406 F.3d 135 (2d Cir. 2005).
2nd Circuit says failure to inform defendant of mandatory restitution was not plain error. (790) Defendant argued for the first time on appeal that he should be permitted to withdraw his guilty plea because the district court violated Rule 11(b) by failing to inform him of mandatory restitution. The Second Circuit agreed that the court violated Rule 11, but found that the error did not meet the plain error test, and thus defendant could not withdraw his plea. To show plain error in the context of a Rule 11 violation, a defendant must establish that the violation affected his substantial rights and that there was a reasonably probability, but for the error, that he would not have entered the plea. Defendant could not meet this burden. First, the PSR informed defendant before sentencing that restitution of $6500 was mandatory. At sentencing, defendant stated that he had read the PSR and was aware of its contents. In addition, at the Rule 11 proceeding, the court informed defendant that by pleading guilty, he would subject himself to a maximum fine of $250,000. Therefore, there was no reasonable probability that being told at the plea hearing of mandatory restitution of $6500 would have affected defendant’s decision to plead guilty. U.S. v. Vaval, 404 F.3d 144 (2d Cir. 2005).
2nd Circuit rules magistrate did not imply defendant retained right to appeal sentence within agreed range. (790) Defendant’s plea agreement calculated a guideline range of 97-121 months, and explicitly provided that defendant “agree[d] to this guidelines calculation.” The provision also contained a provision that defendant waived his right to appeal his sentence if the court imposed a sentence of 121 months or below. Although defendant received a 97-month sentence, he nonetheless appealed, claiming that the waiver provision was unenforceable because the magistrate who conducted the plea proceeding did not mention the provision during the plea colloquy and erroneously implied that defendant retained the right to appeal a sentence below 121 months. The Second Circuit disagreed. The magistrate discussed the waiver and its consequences at length, specifically cautioning defendant that if he received a sentence of 121 months or less, “you will have no right to take any appeal from any aspect of this case.” Even if the magistrate’s statement that defendant had the right to appeal a nonconforming sentence could be read as ambiguously implying that defendant also had the right to appeal a conforming sentence, such an ambiguity would not be sufficient to void the waiver. U.S. v. Morgan, 386 F.3d 376 (2d Cir. 2004).
2nd Circuit holds that waiver provision foreclosed right to make Apprendi challenge. (790) Defendant’s plea agreement calculated a guideline range of 97-121 months, and explicitly provided that defendant “agree[d] to this guidelines calculation.” Defendant also waived the right to appeal his sentence if the court imposed a sentence of 121 months or below. Defendant received a 97-month sentence. He argued that the waiver was unenforceable because his sentence violated Apprendi. Since the indictment did not specify a drug quantity and there was no jury finding or stipulation on the issue, defendant argued that his sentence should have been determined under the “default” provision for marijuana offenses, 21 U.S.C. § 841(b)(1)(D), which carries a maximum penalty of five years. The Second Circuit did not reach the merits of the Apprendi claim, finding that the waiver provision foreclosed his right to appeal on that ground. A defendant who has secured the benefits of a plea agreement and knowingly and voluntarily waives the right to appeal a certain sentence may not appeal a sentence conforming to such an agreement. Defendant reaped substantial benefits under his plea agreement. Defendant not only received the sentence within the range he bargained for, he received a sentence at the bottom of that range. U.S. v. Morgan, 386 F.3d 376 (2d Cir. 2004).
2nd Circuit holds that error in advising defendant of penalties was not harmless. (790) During defendant’s plea colloquy, the court told him that he faced a mandatory minimum sentence of 20 years and a maximum sentence of life imprisonment on the drug counts. In fact, since no drug quantity had been charged, under Apprendi the actual sentencing range was zero to 30 years. The Second Circuit held that the error was not harmless. Although defendant had a two-year delay in presenting his challenge to the court, the critical factor was not the delay, but the gap between the practical effect of a district court informing a defendant of the wrong minimum penalty and the effect of the court informing him of the wrong maximum penalty. The district court informed defendant that a mandatory minimum sentence applied when one did not. Since § 5K1.1 motions are virtually the only mechanism for bypassing statutory minimum sentences, a mandatory minimum sentence represents a strong inducement to plead guilty. Thus, where a defendant has been told that he is facing such a sentence, that information is presumptively significant in the defendant’s decision making. Moreover, the difference between the sentencing range that the court described and the actual range he faced was substantial. Further, there was “the impression of sufficient confusion.” For example, it was unclear whether defendant admitted the drug quantities alleged by the government, or whether he was acknowledging that this was the quantity the government had accused him of dealing in. This combination of factors “tipped the scales” in defendant’s favor. U.S. v. Harrington, 354 F.3d 178 (2d Cir. 2004).
2nd Circuit says plea agreement did not waive right to claim that sentence was based on unconstitutional factor. (790) The district judge placed defendant on probation for five years, but stated that the probation officer could recommend minimal supervision after three years. Further the probation “may be terminated after three years if restitution has been paid in full.” Despite a waiver of appeal in his plea agreement, defendant appealed the term of probation, claiming the court violated his due process rights by extending the probationary term based on his inability to pay restitution. The Second Circuit held that where, as here, a defendant alleges that his sentence is constitutionally deficient because it rests improperly upon his status, a plea agreement cannot serve to waive his appeal. Thus, it considered the merits of defendant’s challenge. U.S. v. Johnson, 347 F.3d 412 (2d Cir. 2003).
2nd Circuit says government breached agreement by seeking increase for conduct known at time of agreement. (790) Defendant pled guilty to transmitting a threat in interstate commerce. His plea estimated defendant’s “likely” adjusted offense level as 10 “[b]ased on information known to [the government] at the time.” The PSR raised the possibility of a six-point enhancement under § 2A6.1(b)(1) for conduct evidencing an intent to carry out the threat, but found a insufficient factual basis for it. Upon reading the PSR, the government, now represented by a different Assistant U.S. Attorney, transcribed for the probation office a tape-recorded conversation in which defendant angrily indicated his intent to carry out this previously articulated threat. The probation office, in an addendum, then recommended the six-point enhancement. The government also submitted a letter to the court arguing in favor of the six-level enhancement recommended in the PSR, and it renewed this argument at sentencing. The Second Circuit held that the government breached the plea agreement by advocating the enhancement. The plea agreement stated that the government’s estimate of the defendant’s offense level was “based on information known to the Government at the time.” The information in the tape that served as the basis for the enhancement was known to the government at the time the plea agreement was signed. It was logical for defendant to believe that the government’s position would not be altered in the absence of new information, or simply because a new Assistant U.S. Attorney had taken over the case. U.S. v. Palladino, 347 F.3d 29 (2d Cir. 2003).
2nd Circuit holds that government letter did not breach promise not to seek departure. (790) In the written plea agreement, both parties agreed that neither a downward nor an upward departure was warranted, and that neither party would seek a departure. Defendant argued that the government breached this promise when it wrote that the court “would be well within its discretion in upwardly departing,” and then detailed the reasons why such a departure would be appropriate. While the government’s letter “was too close in tone and substance to forbidden advocacy to have been well-advised,” the Second Circuit held that the government did not breach the agreement. This was because (1) the government’s letter was in response to a specific inquiry from the court; (2) the plea agreement provided that the government could respond to the court’s inquiries by stating whether a departure would be within the court’s discretion; and (3) the government later repeatedly emphasized that it was not advocating an upward departure. U.S. v. Riera, 298 F.3d 128 (2d Cir. 2002).
2nd Circuit holds that advice rendered incorrect by Apprendi did not warrant reversal. (790) Defendant argued that, in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), the district court erred in telling him that the government had to prove his involvement with only a “detectable” quantity of heroin to expose him to a maximum sentence of life imprisonment. The Second Circuit found that, while the district court’s statement was inaccurate after Apprendi, the mistake did not require reversal on plain error review. The drug quantity was essentially uncontroverted. Defendant stipulated in his plea agreement that the conspiracy involved at least one kilogram of heroin and twice confirmed to the district court that this drug quantity was accurate. Where a defendant has formally and voluntarily admitted a fact in a proceeding to assure the accuracy of the admission, a reversal for plain error in a misstatement regarding the burden of proof as to that fact is not necessary to achieve fairness for the defendant or to protect the integrity or reputation of judicial proceedings. U.S. v. Gutierrez-Rodriguez, 288 F.3d 472 (2d Cir. 2002).
2nd Circuit says use of aggravated felony not charged in indictment did not entitle defendant to withdraw plea. (790) Defendant was charged with and pled guilty to illegally reentering the US after deportation “subsequent to a conviction for the commission of an aggravated felony,” a 1984 robbery conviction in New York. In fact, the robbery was not an aggravated felony under applicable law. Nonetheless, the district court applied the aggravated felony enhancement under 8 U.S.C. § 1326(b)(2) and USSG § 2L1.2(b) based on a 1988 federal drug conviction. Defendant argued on appeal that he did not know that the government could “substitute” another prior aggravated felony conviction at the time of sentencing, and thus, his plea was not knowing and voluntary. The Second Circuit found no error. To the extent defendant was arguing that the court should have allowed him to withdraw his guilty plea, there was no error, since defendant never moved to withdraw his plea on those grounds. His arguments below regarding the indictment error were focused solely on obtaining a reduced sentence. Moreover, his claim was without merit. Although he was not specifically advised that the court could “substitute” a different aggravated felony, he was advised that the guidelines required the court to take any criminal history of his into account at sentencing. U.S. v. Mercedes, 287 F.3d 47 (2d Cir. 2002).
2nd Circuit says court not required to inform defendant of sentencing range with safety valve. (790) Defendant and the government made various sentencing stipulations, including application of the so-called “safety valve” provision, 18 U.S.C. § 3553(f) and USSG § 5C1.2. At the plea allocution, the district court informed defendant that he faced a minimum sentence of ten years and a possible maximum sentence of life imprisonment. The court ultimately adopted the parties’ sentencing stipulations, and imposed a sentence of 70 months. Nonetheless, defendant argued that his plea was invalid because the district court misinformed him of the applicable maximum and mandatory minimum sentences, telling him only about the statutory maximum and minimum without application of the safety valve. The Second Circuit held that the district court was not required to inform defendant of the maximum and minimum sentences he could receive assuming application of the safety valve provision. Rule 11(c)(1) does not obligate a court to calculate and inform the defendant of the applicable guideline sentencing range. See U.S. v. Fernandez, 877 F.2d 1138 (2d Cir. 1989). Moreover, even if the safety valve supersedes the otherwise applicable statutory minimum, a court is not required to inform the defendant of it because at the time of the plea allocution, the safety valve is not yet applicable. A defendant’s qualification for § 3553(f) relief is ascertainable only at sentencing, not at the time the plea is accepted by the court. U.S. v. DeJesus-Abad, 263 F.3d 5 (2d Cir. 2001).
2nd Circuit says court must apply § 5G1.3(b) to Rule 11(e)(1)(C) plea bargains that are mute about how to interact with undischarged sentences. (790) Defendant’s Rule 11(e)(1)(C) plea agreement stipulated that he faced a 20-year prison term. The agreement was silent as to whether the stipulated federal sentence would be served consecutive to, or concurrent with, the sentence defendant was then serving in state prison. Defendant argued that the district court failed to credit him for time served on his state conviction, in contravention of § 5G1.3(b). The Second Circuit held that where a Rule 11(e)(1)(C) plea bargain is silent as to how the sentence is to interact with an existing undischarged sentence, the district court is obligated to apply § 5G1.3(b). A district court does not “modify” the stipulated sentence by applying § 5G1.3, but rather decides how the stipulated sentence is to be implemented vis-à-vis an existing sentence. In the absence of a concurrent/consecutive sentence provision in the plea agreement, the guidelines continue to control the court’s sentencing decision. However, applying § 5G1.3(b) would not have helped defendant, because the district court did not take his prior offense into consideration at sentencing. U.S. v. Williams, 260 F.3d 160 (2d Cir. 2001).
2nd Circuit holds that government was justified in revoking cooperation agreement. (790) Defendant’s written cooperation agreement provided, in part, that if the government determined that defendant committed any further crimes, then the government could deem the agreement null and void. A week after he was released, defendant was arrested and charged with assaulting his girlfriend. The government exercised its option to void the agreement. Defendant moved to withdraw his plea, but the district court rejected his request. Defendant argued that the revocation was “unjustified” because the assault charges ultimately were dismissed. The Second Circuit ruled that the government’s decision to revoke the cooperation agreement was reasonable. The fact that charges were ultimately dismissed did not matter. The government based its decision on the undisputed fact that defendant was arrested, as well as on information provided in the arrest warrant, warrant application, and related reports. The charges filed against defendant provided a good faith basis for the government to determine that he had breached his obligation not to commit any further crimes. Defendant was not entitled to withdraw his guilty plea. Although the written agreement was silent as to whether defendant would be permitted to withdraw his plea if the government voided the agreement, it was clear from the record that the parties’ “reasonable understanding” was that defendant would not be permitted to withdraw his guilty plea if he failed to comply with his obligations and the government voided the agreement. U.S. v. Gregory, 245 F.3d 160 (2d Cir. 2001).
2nd Circuit upholds denial of motion to withdraw plea where defendant swore he understood plea. (790) Defendant moved to withdraw his guilty plea on the ground that his counsel was ineffective because he misled defendant as to the consequences of his plea. The district court denied the motion and defendant appealed. The Second Circuit ruled that defendant did not show deficient performance by his attorney, and thus the district court did not err in denying the motion to withdraw. Although defendant claimed he did not understand the consequences of his plea, the district court was entitled to rely on defendant’s sworn statements, made in open court with the assistance of a translator, that he understood the consequences of his plea, had discussed the plea with his attorney, knew that he could not withdraw the plea, understood he was waiving his right to appeal a sentence below 120 months, and had been made no promises except those contained in the agreement. U.S. v. Hernandez, 242 F.3d 110 (2d Cir. 2001).
2nd Circuit finds Rule 11(e)(2) error harmless where defendant received more lenient sentence than recommended. (790) The district court failed to advise defendant, as required by Rule 11(e)(2), that she would not be permitted to withdraw her plea if the court sentenced her to a prison term outside the guideline range estimated in her plea agreement. However, the government had estimated that her likely range of imprisonment would be 46 to 57 months, and defendant actually received a sentence of only 24 months. The Second Circuit held that the Rule 11(e)(2) error was harmless, since defendant received a more lenient sentence than recommended by the government. Without a Rule 11(e)(2) warning, there is a danger that defendants will not fully anticipate the possible negative consequences of entering a guilty plea, and may make guilty plea decisions without full knowledge of the risks they are undertaking. This consideration is not applicable in a circumstance in which a defendant receives a more lenient sentence than recommended by the government. U.S. v. King, 234 F.3d 126 (2d Cir. 2000).
2nd Circuit holds that judge’s post-sentencing remarks did not make waiver of appeal ineffective. (790) Defendant’s plea agreement provided that both he and the government waived their rights to appeal, in the event that defendant was sentenced within the stipulated range. At the guilty plea hearing, the judge complied with Rule 11(c)(6), and obtained defendant’s informed consent to the appeal waiver. After imposing sentence some four months later, however, the court advised defendant that he had ten days to appeal and made several other comments about defendant’s right to appeal. The prosecutor failed to remind the court that appellate rights had been waived. The Second Circuit joined the Fifth, Seventh, Eighth, and Tenth Circuits in holding that an otherwise enforceable waiver of appellate rights is not rendered ineffective by a district judge’s post-sentencing advice suggesting, or even stating, that the defendant may appeal. If the waiver is enforceable when the plea is entered, the waiver does not lose its effectiveness because the judge gives the defendant advice inconsistent with the waiver. No justifiable reliance has been placed on such advice. U.S. v. Fisher, 232 F.3d 301 (2d Cir. 2000).
2nd Circuit permits government to make argument on appeal that plea agreement barred it from making at sentencing. (790) Defendant’s plea agreement stipulated that she would receive a three-level mitigating role reduction under § 3B1.2(b). The parties also agreed that neither would seek any departure or adjustment not set forth in the plea agreement. The district court refused to grant defendant the § 3B1.2(b) reduction. Defendant argued that the government’s support on appeal of the district court’s denial of the reduction breached its obligation under the plea agreement. The government contended that it still believed defendant deserved the minor role reduction, but that the district court’s judgment could be supported on the facts and the law. The Second Circuit held that the government may argue on appeal a position contrary to that which the plea agreement required it to take at sentencing. The agreement did not cover any position the parties might take on appeal. The only provision in the agreement specifically regarding appeals related solely to the circumstances under which either party could appeal the sentence imposed. Moreover, the agreement provided that if the probation office or district court contemplated any sentencing calculations different from those stipulated, “the parties reserve the right to answer any inquiries and to make all appropriate arguments concerning the same.” Finally, the government had a legal and ethical obligation to state its views as to the propriety of the district court’s sentencing determination. U.S. v. Colon, 220 F.3d 48 (2d Cir. 2000).
2nd Circuit says court must consider safety valve in determining stipulated guideline range. (790) Defendant agreed as part of his plea agreement that he would not appeal or otherwise litigate any sentence “within or below the Stipulated Guidelines Range.” The plea agreement stated that “[A]bsent relief from the statutory minimum sentence, the Guidelines range is 60-71 months (the ‘Stipulated Guidelines Range’).” Defendant challenged the district court’s failure to grant him safety valve relief. The government argued that defendant waived his right to appeal because his 60-month sentence was within the Stipulated Guideline Range. The Second Circuit found this argument “totally lacking in merit” and “border[ing] on the unprofessional.” The Stipulated Guidelines Range was 60-71 months only if the safety valve did not afford relief from the statutory minimum sentence. The Stipulated Range was something else presumably less if the safety valve did apply. This common sense reading was supported by the next paragraph, which computed a sentencing range of 46-57 months if the safety valve applied. U.S. v. Tang, 214 F.3d 365 (2d Cir. 2000).
2nd Circuit says court’s failure to advise defendant of consequences of appeal waiver made it unenforceable. (790) Defendant agreed as part of his plea agreement that he would not appeal or otherwise litigate any sentence within or below the stipulated guideline range. At the plea allocution, the judge complied with all of the requirements of Fed. R. Crim. Proc. 11(c), except he did not inform the defendant of, or determine that defendant understood, the waiver of appeal provision. The Second Circuit held that the district court’s failure to advise defendant of the waiver and ensure that he understood the provision, as required by Rule 11(c), rendered the waiver unenforceable. Even before this requirement was added to Rule 11 in 1999, courts had emphasized the importance of ascertaining the defendant’s understanding of a waiver of appellate rights. See, e.g., U.S. v. Chen, 127 F.3d 286 (2d Cir. 1997). However, given the confusion over the advice a defendant should be given concerning his appellate rights, the court offered the following advice: Where a waiver of appeal is of the type generally ruled enforceable, and has been fully explained to a defendant as required by Rule 11(c)(6), district judges should not give unqualified advice concerning a right to appeal. In such cases, they might consider mentioning that appellate rights were waived in the plea agreement. If defense counsel disputes the scope or effectiveness of the waiver, defense counsel should alert the judge at the time of sentencing to such a claim, thereby giving the judge an opportunity to clarify the record as to the scope of the waiver and defendant’s understanding of it. U.S. v. Tang, 214 F.3d 365 (2d Cir. 2000).
2nd Circuit rules counsel was not required give opinion on whether defendant should take plea offer. (790) Defendant claimed his attorney improperly failed to advise him of certain statements by the prosecutor and failed to advise him to accept a guilty plea. The Second Circuit found no ineffective assistance. First, it was reasonable for counsel not have told defendant of the prosecutor’s comment that he “didn’t know of any case where a white collar criminal with those guidelines had gone to jail with Judge Burns or Judge Dorsey.” Counsel had recently represented a client in such a situation who had received a prison term from Judge Dorsey. Defendant’s decision to forgo specifically telling defendant whether he should accept the government’s plea offer was also within the range of professional reasonableness. Counsel repeatedly advised defendant of the strength of the government’s case against him, and defendant himself testified that he understood that his task at trial would be “very difficult.” In light of defendant’s steadfast protestations of innocence, these actions reasonably fulfilled counsel’s obligations to advise defendant. The court rejected as dicta language in Boria v. Keane, 99 F.3d 492 (2d Cir. 1996) suggesting a per se rule that counsel must advise a client whether to take a plea offer. Purdy v. U.S., 208 F.3d 41 (2d Cir. 2000).
2nd Circuit holds that defendant who absconded forfeited claim that government breached agreement. (790) After receiving notice that the government would not file a § 5K1.1 motion, defendant jumped bail and became a fugitive for several years. After he surrendered, he argued that the government’s decision not to file a § 5K1.1 motion breached his cooperation agreement, since it was the government’s “negligence” in exposing his identity that prevented him from providing substantial assistance. The Second Circuit held that defendant forfeited any right to withdraw his plea or compel the government’s performance when he jumped bail and became a fugitive, in violation of the express terms of his cooperation agreement. By absconding, defendant forfeited any right he arguably may have had based on his cooperation agreement with the government. See e.g., U.S. v. Resto, 74 F.3d 22 (2d Cir. 1996) (defendant who breaches his cooperation agreement by lying to federal agents about his criminal history absolves government of obligation to file § 5K1.1 motion). U.S. v. El-Gheur, 201 F.3d 90 (2d Cir. 2000).
2nd Circuit says § 1B1.8 protection not lost by signing new plea agreement. (790) Defendant’s 1995 cooperation agreement barred the government from using any self-incriminating information he provided, so long as he did not breach the agreement. The parties later had a dispute as to whether defendant breached the agreement. They settled the dispute through a second plea agreement covering additional charges. The district court then sentenced defendant based on his post-plea disclosure that the conspiracy covered by the 1995 agreement involved 1048 pounds of marijuana, rather than 378 pounds as stipulated in the 1995 agreement. The Second Circuit held that the district court violated § 1B1.8 by considering defendant’s post–plea disclosures at sentencing. There was never any judicial determination that defendant had breached the 1995 agreement, and defendant never conceded that he breached it. Defendant’s signing of the 1998 agreement did not waive his claim that he did not breach the 1995 agreement. Section 1B1.8’s protection would be undercut if defendant were to lose it by signing the 1998 agreement when he received inadequate notice that his post-plea admissions could be used against him. U.S. v. Bradbury, 189 F.3d 200 (2d Cir. 1999).
2nd Circuit holds that anti-gratuity statute does not apply to U.S. prosecutor acting in official capacity. (790) Defendant argued that the admission of co-conspirator testimony at his trial violated the so-called “anti-gratuity statute,” 18 U.S.C. § 201(c)(2), because the government promised these witnesses leniency in exchange for their truthful testimony. The Second Circuit, agreeing with the reasoning of the Tenth Circuit’s en banc opinion in U.S. v. Singleton, 165 F.3d 1297 (10th Cir. 1999) (en banc), held that 18 U.S.C. § 201(c)(2) does not apply to the United States or to any Assistant United States Attorney acting within his or her official capacity. U.S. v. Stephenson, 183 F.3d 110 (2d Cir. 1999).
2nd Circuit holds that failure to explain effects of supervised release was harmless. (790) During defendant’s seven-minute plea allocution, the district court did not explain the effect of supervised release. The judge did not inform defendant that if he violated his conditions of supervised release, then he could be imprisoned for the entire supervised release term without credit for time previously served. The Second Circuit held that a Rule 11(c) error is harmless where the district court misinforms a defendant of the applicable supervised release term, and the total sentence of imprisonment and supervised release actually imposed is less than that described during the plea allocution. Under this test, the district court’s failure to explain to defendant the effects of supervised release was harmless error. During defendant’s plea allocution, the judge told defendant that he faced imprisonment of up to 40 years and supervised release of at least five years or as long as life. The judge sentenced defendant to 92 months imprisonment and four years supervised release. The combined penalty was therefore less than the maximum that the court represented to defendant. U.S. v. Andrades, 169 F.3d 131 (2d Cir. 1999).
2nd Circuit holds that government breached plea agreement by stating PSR was correct. (790) Defendant, a federal prisoner,eHH pled guilty to assaulting a federal officer. The government stipulated in his plea agreement that § 2A2.3 (Minor Assault) was applicable to the crime. However, the PSR recommended that the court apply § 2A2.3 (Obstructing or Impeding Officers), and recommended an enhancement under § 2A2.4(b)(1) for conduct involving “physical contact.” Although defendant objected to the enhancement, he never objected to the use of § 2A2.4. At sentencing, in response to defendant’s objection to the § 2A2.4(b)(1) enhancement, the government stated that it felt that the PSR “was appropriately scored in the first instance.” The Second Circuit held that the government breached the plea agreement by telling the court that it believed that the PSR was correct. The plea agreement did not obligate the government to bring the issue of the proper guideline to the attention of defendant or the district court, or to object to the PSR on the defendant’s behalf. However, by concurring with the PSR’s application of § 2A2.4(b)(1), the government implicitly agreed with its application of § 2A2.4. There is no principled difference between supporting the applicability of § 2A2.4 and arguing in favor of the applicability of § 2A2.4(b)(1). U.S. v. Lawlor, 168 F.3d 633 (2d Cir. 1999).
2nd Circuit holds claim not barred by failure to raise government’s breach of plea agreement at sentencing. (790) The government stipulated in defendant’s agreement that he was to be sentenced under § 2A2.3. However, his PSR, which the district court followed, applied § 2A2.4. Defendant did not object to the application of § 2A2.4 either in his objections to the PSR or at sentencing. On appeal, the government argued that the Second Circuit was bound to apply a plain error standard of review. The court disagreed based on previous cases holding that a defendant is not required to object to the violation of a plea agreement at the sentencing hearing. Thus, defendant’s claim was not barred by his failure to raise this issue with the district court, nor was the Second Circuit bound to apply a plain error standard of review. U.S. v. Lawlor, 168 F.3d 633 (2d Cir. 1999).
2nd Circuit holds that government submission on sentencing issues did not breach plea agreement. (790) A week before defendant’s sentencing date, she moved to withdraw her plea on the ground that the district court was likely to impose a substantially longer sentence than she expected when she entered into her plea agreement. The Second Circuit held the court’s intent to impose a longer sentence than defendant expected when she entered the plea was an invalid ground for withdrawal of the plea. The court also held that the government did not breach the plea agreement by submitting a brief on the issues of acceptance of responsibility and abuse of trust. The judge first raised questions about these adjustments, and directed the government to provide him with pertinent information. The government expressly stated in its memorandum that it was not advocating a position on either issue. The government’s submission did say that the court “could find” that defendant’s conduct “technically” constituted an abuse of trust and that defendant’s attempt to withdraw her plea “militate[d] against” an acceptance of responsibility reduction. Although the government might have been better advised not to make these statements, the statements did not violate the plea agreement. U.S. v. Goodman, 165 F.3d 169 (2d Cir. 1999).
2nd Circuit says motion properly treated as request for departure rather than plea withdrawal. (790) Defendant tendered a guilty plea under an agreement providing for a 14-year sentence. The judge deferred decision on whether to accept the plea agreement and the plea. Defendant’s health deteriorated, and for about three years, he was incarcerated in various federal prison hospitals. Defendant then moved under Rule 32(e) to reject the plea agreement. In view of his diminished life expectancy, he asked the court to impose a sentence less than the bargained-for sentence. The judge, treating defendant’s motion as a request for a downward departure, refused to depart because the medical staff of the Bureau of Prisons was able to adequately care for defendant. The Second Circuit ruled that the district court properly treated defendant’s motion as a request for a departure rather than a request for a plea withdrawal. The plea and agreement had not yet been accepted when defendant made his application; thus, a Rule 32(e) plea withdrawal motion was technically not available. The judge acted well within his discretion in refusing to depart. The standards for a downward departure on medical grounds are strict. Section 5H1.4 requires an extraordinary medical condition that the Bureau of Prisons cannot accommodate. U.S. v. Persico, 164 F.3d 796 (2d Cir. 1999).
2nd Circuit holds that any error in informing defendant of maximum sentence was harmless. (790) Defendant pled guilty to reentering the U.S. after deportation. At the time of his plea, the district court told defendant that he faced a maximum sentence of 15 years’ imprisonment under 8 U.S.C. § 1326(b). The court later determined that defendant was only subject to a five-year maximum. Defendant argued that the court violated Rule 11(c)(1) by failing to inform him correctly of the maximum sentence he faced. The Second Circuit held that any error in informing defendant of the maximum sentence was harmless under Rule 11(h). The only possible adverse impact on defendant of the court’s change of position would be if defendant, had he been correctly advised, would have chosen to stand trial. However, once defendant learned of the shorter maximum, he did not ask the court to permit him to withdraw his plea. Also, the change in maximum sentences did not drastically affect defendant’s ultimate sentence. When defendant was told he faced a 15-year maximum, he also was informed that the likely guideline range was 70-87 months. U.S. v. Westcott, 159 F.3d 107 (2d Cir. 1998).
2nd Circuit rules grossly underestimating sentence was ineffective assistance. (790) Defendant was indicted on various firearms charges. Defense counsel informed defendant that conviction would result in a 120-month sentence, but that the government’s plea offer would expose defendant to an 84-month sentence. Defendant decided to take his chances at trial and was convicted. The PSR recommended a guideline range of 262-327 months. Defense counsel notified the court of his mistake and was relieved as counsel. The district court ultimately determined defendant had a guideline range of 210-262 months, and imposed a 210-month sentence. After sentencing, defendant moved under § 2255 to vacate his conviction based on ineffective assistance of counsel. The district court granted the motion, and the Second Circuit affirmed Defense counsel’s gross underestimation fell below prevailing professional norms. Defendant suffered prejudice because his reliance on the incorrect advice affected the outcome of the proceedings. Defendant said that but for the bad advice, he would have taken whatever plea had been offered. U.S. v. Gordon, 156 F.3d 376 (2d Cir. 1998).
2nd Circuit finds no obligation to make § 5K1.1 motion where defendant breached plea agreement. (790) Defendant argued that the district court erred in not compelling the government to make a § 5K1.1 motion for a downward departure based on his substantial assistance during the investigation that led to the indictments. The Second Circuit found this argument almost frivolous, given defendant’s breach of the plea agreement. Defendant agreed as part of the plea agreement to respond truthfully and completely to all inquiries from the U.S. Attorney’s office. Defendant then attempted to obtain $10,000 from a co-conspirator to bribe a judge in the co-conspirator’s trial, and lied when government attorneys asked him when he had last spoken with the co-conspirator. Defendant’s conduct so undercut his credibility that the government was unable to use him as a witness at trial. U.S. v. Fernandez, 127 F.3d 277 (2d Cir. 1997).
2nd Circuit upholds refusal to make § 5K1.1 motion based on belief that defendant lied about unrelated crime. (790) Defendant provided substantial assistance about the embezzlement scheme and signed a formal cooperation agreement that provided that the government would move for a § 5K1.1 substantial assistance departure. The government then learned that defendant was involved in the arson of his house two years earlier. Defendant professed his innocence, but the government declined to move for a § 5K1.1 departure because it believed defendant had breached the terms of the cooperation agreement by lying about the arson and by not revealing that he was under criminal investigation for it. The Second Circuit held that the government was justified in not making the motion because of its reasonable belief that defendant lied about his involvement in the arson. The cooperation agreement did not require defendant to volunteer information concerning his criminal involvement on a continuing basis. However, the government could conclude that defendant materially breached the agreement when he lied about his involvement in the arson. U.S. v. Pollack, 91 F.3d 331 (2d Cir. 1996).
2nd Circuit upholds refusal to hold hearing on defendant’s bad faith claim. (790) The government agreed to move for a downward departure if it determined that defendant’s assistance was substantial. Although defendant provided information, it did not amount to much. The most promising tip did not result in a prosecution because the proposed drug deal fell apart when defendant got into an altercation with one of the participants. The government refused to move for a § 5K1.1 departure. Defendant argued that the government acted in bad faith. The district court rejected his argument without a hearing, and the Second Circuit affirmed. The government explained that defendant’s assistance was not substantial, emphasizing that defendant’s dispute with one target undermined a proposed sting operation. It chose not to prosecute another target because he withdrew from the proposed deal before delivering cash, making a conspiracy prosecution far less attractive and removing the ability to seize “buy” money. This reason was sufficient. U.S. v. Imtiaz, 81 F.3d 262 (2d Cir. 1996).
2nd Circuit finds refusal to file departure letter did not breach cooperation agreement. (790) After defendant was arrested, he agreed to cooperate and testify against a co-conspirator. In his cooperation agreement he promised not to give false or misleading information or to commit any further crimes. The government agreed that if he met his obligations, it would file a substantial assistance motion. The co-conspirator pled guilty so defendant was not required to testify. The government then learned that defendant had failed to disclose 11 earlier arrests under various aliases. Defendant denied the prior arrests and then fled. He remained at large until arrested on fraud charges. The Second Circuit agreed that the government had no obligation to make a § 5K1.1 motion. The cooperation agreement gave the government considerable discretion. Defendant’s obligation to comply with the law was not limited to the period of time he actively cooperated with the government, and his obligation to be truthful did not relate only to his statements about others. The prosecutor’s statement at his pre-trial hearing that the government was ready to give a § 5K letter was only a current assessment of defendant’s situation. It did not change the agreement. U.S. v. Resto, 74 F.3d 22 (2d Cir. 1996).
2nd Circuit requires hearing on government’s good faith in refusing to make § 5K1.1 motion. (790) Defendant alleged that the government breached his plea agreement by failing to make a § 5K1.1 motion. The Second Circuit directed the district court to hold an evidentiary hearing to determine whether the government acted in good faith. There was an oral plea agreement. Relying on the government’s assurances, defendant provided assistance that led to the arrest of three drug traffickers. The government was satisfied with his cooperation and sent him a written agreement stating that it would make a § 5K1.1 motion if he provided substantial assistance. Defendant signed the agreement. The government provided two justifications for its failure to perform, contending that defendant breached the agreement by informing a co-conspirator about his cooperation and that defendant changed his initial description of a co-conspirator’s drug activities. Defendant disputed these assertions, noting that an investigative report corroborated his position. The district court’s failure to resolve these disputed issues required a remand. U.S. v. Leonard, 50 F.3d 1152 (2d Cir. 1995).
2nd Circuit remands to new judge where defendant reasonably understood plea agreement guaranteed minor role reduction. (790) Defendant did not have a written plea agreement, but the government orally agreed that it would not contest a minor role reduction if the probation department found he deserved one. Statements made at his plea hearing gave defendant and counsel the impression that the agreement “definitely” promised a minor role reduction. The probation department recommended no reduction, and the government supported this recommendation. On appeal, the government conceded that defendant’s sentence should be vacated because defendant may have reasonably misunderstood the terms of his plea agreement. The Second Circuit agreed, and remanded to a different judge for resentencing. If the case were remanded to the same judge, he would be “hard pressed” to take a fresh look at whether defendant should receive the adjustment. U.S. v. Gaviria, 49 F.3d 89 (2d Cir. 1995).
2nd Circuit permits AUSA to seek increase for obstruction despite acquiescing in acceptance reduction. (790) The government promised, as part of defendant’s plea agreement, not to contest giving defendant an acceptance of responsibility reduction. Defendant claimed that the government’s promise not to oppose a reduction for acceptance of responsibility barred it from supporting an obstruction of justice enhancement. The Second Circuit disagreed, since in some cases, a court may properly impose both the enhancement and the reduction. U.S. v. Enriquez, 42 F.3d 769 (2d Cir. 1994).
2nd Circuit remands to new judge where government breached promise not to oppose acceptance reduction. (790) The government promised, as part of defendant’s plea agreement, not to contest giving defendant an acceptance of responsibility reduction. However, the probation department recommended against granting defendant the reduction and recommended imposing an obstruction enhancement. The government supported this position in letters to the probation department and in arguments before the sentencing judge. The judge accepted the government’s arguments. The Second Circuit found that the government breached its promise, and remanded the case to a new judge for resentencing, even though the original sentencing judge acted properly. If the government had not breached its commitment not to contest the acceptance of responsibility reduction, it is possible that the judge would not have given serious thought to denying it. Resentencing before the same judge might deprive defendant of the benefit he was promised in the plea agreement. U.S. v. Enriquez, 42 F.3d 769 (2d Cir. 1994).
2nd Circuit rules that failure to advise of mandatory minimum sentence was not harmless even though court departed below it. (790) Defendant’s plea agreement stated that he was subject to a maximum of 40 years’ imprisonment and a $2 million fine. In fact, he was subject to a maximum penalty of life imprisonment and a $4 million fine, with a 10-year mandatory minimum term probable and five year mandatory minimum term almost surely. The district court repeated the errors at defendant’s plea colloquy. The 2nd Circuit held that the failure to advise defendant of the applicable mandatory minimum sentence violated Rule 11(c)(1), and the error was not harmless. The relevant inquiry must focus upon what a defendant actually knows when he pleads guilty. Without an affirmative indication in the record, an appellate court cannot assume that a defendant knows what he faces. Although the district court actually departed below the statutory minimum sentence of 10 years based on defendant’s substantial assistance, the failure to inform defendant of the mandatory minimum sentence likely influenced his decision to plead guilty. U.S. v. Padilla, 23 F.3d 1220 (2nd Cir. 1994).
2nd Circuit denies plea withdrawal despite consecutive sentence and attorney conflict of interest. (790) Defendant contended that the district court should have allowed him to withdraw his guilty plea because of his misunderstanding as to consecutive sentencing and because of his counsel’s conflict of interest. The 2nd Circuit found no abuse of discretion. Defendant chose his counsel notwithstanding the conflict of interest. He failed to provide any evidence that counsel’s recommendation to plead guilty was designed to benefit other conspirators, or that defendant was prejudiced by the fact that another conspirator was paying his counsel’s bills. Defendant’s desire to avoid consecutive sentences was not a valid ground for plea withdrawal, given his testimony that no one had made any promises and his admission that the government had advised him that his sentences would be consecutive. U.S. v. Vega, 11 F.3d 309 (2nd Cir. 1993).
2nd Circuit finds understatement of maximum term of supervised release was harmless. (790) Defendant’s plea agreement and the district judge at defendant’s plea allocution erroneously understated the maximum term of supervised release for defendant’s crime, while the PSR correctly stated the maximum term. The 2nd Circuit found that the failure to comply with Fed. R. Crim. P. 11 was harmless, because after learning from the PSR that the maximum supervised release term was longer than he expected, defendant made no protest and did not seek to withdraw his plea. Neither at sentencing nor resentencing did defendant seek to withdraw his plea. Finally, during this appeal, defendant confirmed that he did not wish to withdraw his plea, but rather sought to have his supervised release term reduced. Such relief was not available. When a Rule 11 error is made, it is to be corrected by giving the defendant an opportunity to enter a new plea. U.S. v. Renaud, 999 F.2d 622 (2nd Cir. 1993).
2nd Circuit says agreement not to oppose downward departure did not preclude request for upward departure. (790) The 2nd Circuit held that the government’s agreement not to oppose the defendant’s request for a downward departure did not preclude the government from moving for an upward departure on different grounds. The grounds for departure are diverse, and factors that could warrant an upward departure can coexist with factors that could warrant a downward departure. Though opposing motions may offset each other, with the result that the sentence ultimately imposed is within the guidelines range, that result does not detract from the possible coexistence of competing factual foundations. U.S. v. Miller, 993 F.2d 16 (2nd Cir. 1993).
2nd Circuit refuses to consider possible breach of plea agreement where defendant waived right to appeal sentence. (790) Defendant’s plea agreement provided that he waived his right to appeal his sentence if it fell within a specified range. Defendant’s sentence was at the high end of the specified range, based in part on the judge’s finding that defendant was a minor participant rather than, as characterized by the plea agreement, a minimal participant. Defendant argued that the government breached the plea agreement by failing to justify to the court the plea agreement’s conclusion that he was a minimal participant, and that this breach entitled him to challenge the merits of his sentence. The 2nd Circuit rejected this argument. Under some circumstances the breach of a plea agreement may render a defendant’s plea involuntary. But a defendant who has secured the benefit of a plea agreement and waived his right to appeal a certain sentence may not appeal the merits of a sentence that conforms to the agreement. This would render the agreement meaningless. U.S. v. Salcido-Contreras, 990 F.2d 51 (2nd Cir. 1993).
2nd Circuit affirms no breach of plea agreement where judge, not government, initiated upward departure. (790) The 2nd Circuit rejected defendant’s claim that the government broke its plea agreement with him by advocating an upward departure based upon his failure to make restitution and his concealment of assets. First, the government was permitted under the agreement to raise any arguments relevant to obstruction of justice and acceptance of responsibility. Second, it was the district court judge, not the government, who initiated and pursued the issue of upward departure. The judge directed the government to provide him with the pertinent information. Finally, defendant himself violated the plea agreement by refusing to make available prior to sentencing financial data requested by the government. A defendant who materially breaches a plea agreement by not claim its benefits. U.S. v. Merritt, 988 F.2d 1298 (2nd Cir. 1993).
2nd Circuit says unsupported claims did not require evidentiary hearing on application to withdraw guilty plea. (790) The 2nd Circuit upheld the district court’s refusal to hold an evidentiary hearing on defendant’s application to withdraw his guilty plea. A defendant is not entitled to an evidentiary hearing as a matter of right, but must present some significant questions concerning the voluntariness or general validity of the plea to justify an evidentiary hearing. Defendant’s claim that he was innocent of the gun charge was undercut by its timing, coming seven months after the plea. It also was directly contradicted by his incriminating statements at the plea allocution. His claim that he plead guilty based upon his attorney’s incorrect advice regarding the terms of his cooperation agreement was contradicted by his admissions at the plea allocution that he had read the cooperation agreement and was familiar with its contents. Defendant’s claim that his attorney was under a conflict of interest based upon unrelated charges pending against the attorney was also unsupported, since the attorney did not discover that he was under investigation until after defendant plead guilty. U.S. v. Gonzalez, 970 F.2d 1095 (2nd Cir. 1992).
2nd Circuit finds insufficient basis for government’s refusal to move for downward departure. (790) Defendant’s plea agreement provided that if in the “sole and unfettered discretion” of the government, defendant’s cooperation warranted a downward departure, the government would make a motion under section 5K1.1. After defendant and his brother — who was also a cooperating witness — testified, the government refused to move for the departure. It gave as its reasons: 1) defendant’s cooperation was untimely, 2) defendant was more culpable than the co-defendant against whom he had testified, 3) defendant pled guilty only because his brother had done so, 4) the plea agreement benefited defendant in other ways, 5) the “substantial assistance” clause in the plea agreement was not bargained for, and 6) defendant’s trial testimony was inconsistent with the testimony of his brother. The district court found that the government acted in good faith in refusing to move for a downward departure, but the 2nd Circuit remanded for reconsideration, ruling that none of the stated reasons were sufficient. Even if the district court thought that defendant had testified falsely, the court failed to say so. The case was remanded for further consideration of the good faith issue, with a key issue being the veracity of defendant’s testimony. U.S. v. Knights, 968 F.2d 1483 (2nd Cir. 1992).
2nd Circuit finds government’s failure to move for departure did not breach agreement. (790) The government agreed that if it determined that defendant had provided substantial assistance, it would move for a section 5K1.1 departure. At the trial of his co-conspirator, defendant initially balked at testifying. As a result, the government sought an immunity order to force him to testify. Later that day, defendant’s attorney said defendant was willing to testify, but the government replied that defendant breached the agreement and the government would not honor it. Defendant nonetheless testified. The 2nd Circuit found the government did not breach the agreement by failing to move for a downward departure. The agreement explicitly placed the evaluation of defendant’s performance within the discretion of the government. The appellate court agreed with the district judge’s finding that defendant, and not the government, acted in bad faith. U.S. v. Hon, 17 F.3d 21 (2nd Cir. 1994).
2nd Circuit refuses to permit withdrawal of plea entered in erroneous belief that government would dismiss indictment against co-conspirator. (790) The 2nd Circuit rejected defendant’s contention that he should have been permitted to withdraw his guilty plea because it was entered in the erroneous belief that the government would dismiss the indictment against a co-conspirator. In his plea hearing, defendant gave no indication that he was pleading guilty in order to secure favorable treatment for the co-conspirator. When asked whether anyone had made any other promises to him in connection with sentencing, he answered in the negative. Remarking on the colloquy and noting that defendant did not, claim his innocence of the charge, the district court denied defendant’s motion in connection with his motion to withdraw his plea,. This was not an abuse of discretion. U.S. v. Rodriguez, 968 F.2d 130 (2nd Cir. 1992).
2nd Circuit rules that government’s opposition to Rule 35 motion did not breach promise not to make sentencing recommendations. (790) The 2nd Circuit rejected defendant’s claim that the government’s opposition to his Rule 35 motion to reduce his sentence constituted a breach of its promise in his plea agreement not to make any recommendation at sentencing. The plea agreement committed the government to make no recommendation “at the time of sentencing.” That commitment could not reasonably be understood to preclude the government from opposing an attempt to have the sentence reduced after it had been imposed. U.S. v. Feigenbaum, 962 F.2d 230 (2nd Cir. 1992).
2nd Circuit directs district court to permit withdrawal of guilty pleas or conform sentence to plea bargain. (790) Defendants’ plea agreements specified the amounts of their fine but were silent on all other aspects of their sentences. The agreements did not contain any language limiting the sentence to a fine. The district court judge sentenced both defendants to probation and a fine in excess of the amount specified in their respective plea agreements. The 2nd Circuit remanded for resentencing, but found that the district judge had the option of accepting the sentencing bargain, in which case he must conform the sentence by reducing the fine to the bargained amount. If he preferred to retain the authority to impose a greater fine in either case, then he must afford the defendant the opportunity to withdraw the guilty plea. The government waived any objection to the withdrawal of the guilty plea by failing to alert the district judge that the initial sentences exceeded the sentence bargains. On remand, if the sentencing judge accepts the sentencing bargain and lowers the fine, he may also impose a sentence of imprisonment in lieu of the sentence of probation. The government may argue in favor of imprisonment even though it did not take a cross-appeal. Because defendants could not necessarily have anticipated that success on appeal might result in a term of imprisonment, the appellate court decided to give each defendant the opportunity to withdraw his or her appeals instead of facing the risk of imprisonment. U.S. v. Bohn, 959 F.2d 389 (2nd Cir. 1992).
2nd Circuit rules government did not void plea agreement by failing to recommend acceptance of responsibility reduction. (790) Defendant’s plea agreement provided that the government would recommend an acceptance of responsibility reduction, conditioned upon defendant’s full disclosure of the circumstances surrounding his offense. The agreement further provided that if defendant violated any term of the agreement, engaged in any criminal activity or failed to appear for sentencing, the government could void the agreement. Defendant failed to appear for sentencing, and was subsequently arrested on unrelated drug charges. The 2nd Circuit rejected defendant’s claim that the government’s failure to move for an acceptance of responsibility reduction was an exercise of its option to void the plea agreement, thus releasing him from his guilty plea. The “reasonable meaning” of the plea agreement was that defendant’s failure to appear for sentencing would not release him from his guilty plea, but would release the government from its obligations to recommend an acceptance of responsibility reduction. The government did not exercise its option to void the agreement. U.S. v. Rivera, 954 F.2d 122 (2nd Cir. 1992).
2nd Circuit finds no grounds for withdrawal of guilty plea. (790) Defendant argued that the district court should have allowed him to withdraw his guilty plea because it was the result of undue pressure. Defendant was told by his attorney that his co-defendant would suffer unless defendant pled guilty. The 2nd Circuit found that pressure based on a benefit to a mere friend is not an adequate basis for withdrawal of a guilty plea. Defendant also contended that the district court, by denying him the opportunity to present a defense, indirectly coerced him into pleading guilty. The 2nd Circuit found that by pleading guilty, defendant waived any right to appeal the district court’s decision that it intended to preclude any evidence related to this defense. Defendant also claimed that the factual basis for his guilty plea to conspiracy was inadequate, since a government agent was involved. The 2nd Circuit also rejected this argument, noting that defendant was aware that co-conspirators other than the government agent were involved in the offense. U.S. v. Contractor, 926 F.2d 128 (2nd Cir. 1991).
2nd Circuit holds that judge need not inform the defendant that his property might be forfeited before accepting a guilty plea. (790) Defendant argued that due process barred the government from bringing a forfeiture action against him because the district attorney never told him during plea negotiations that the state agencies that prosecuted him intended to seek forfeiture and the judge who accepted his guilty plea never advised him of the possibility of forfeiture. The 2nd Circuit rejected this argument, holding that “since the forfeiture was not a necessary consequence of [defendant’s] guilty plea, there was no requirement that [defendant] be informed that it might someday occur. The court noted that even if defendant “had chosen not to plead guilty and had been acquitted after trial, the money could still have been the subject of a forfeiture action.” U.S. v. U.S. Currency in the Amount of $228,536.00, 895 F.2d 908 (2nd Cir. 1990).
2nd Circuit holds plea is knowing despite claim of ignorance as to relevant conduct. (790) Relying upon an earlier decision in U.S. v. Fernandez, 877 F.2d 1138 (2nd Cir. 1989), the 2nd Circuit rejected a defendant’s claim that his guilty plea was not “knowing” because at the time of the plea he was unaware that the guidelines permit a sentencing court to consider both the amount of drugs he admitted to possessing and the additional quantities seized from the apartment he shared with his codefendant. U.S. v. Soliman, 889 F.2d 441 (2nd Cir. 1989).
3rd Circuit finds that enforcing appellate waiver would not result in miscarriage of justice. (790) Defendant’s plea agreement contained a waiver of his right to appeal his sentence. He argued that the district court violated Rule 11 by failing to adequately inform him of the terms of his appellate waiver and ensuring that he understood those terms. Because defendant did not object in the district court to the purported Rule 11 error, he had the burden to satisfy the plain-error rule. Defendant met his burden under the first two prongs of the plain-error analysis, because the district court did not personally discuss the appellate waiver with defendant, or even mention the waiver at any point, depending instead on the prosecutor to “outline” the plea agreement during the change of plea hearing. Defendant also established that his substantial rights were affected by the court’s errors. The court made no effort to determine that defendant, whose education was limited, understood the effect of his waiver on his right to appeal, or even whether he had discussed the waiver with his attorney. The Third Circuit nonetheless refused to set aside the waiver because it was unconvinced, on the record, that enforcing the waiver would result in a miscarriage of justice. U.S. v. Corso, 549 F.3d 92 (3d Cir. 2008).
3rd Circuit says court properly advised defendant that he faced mandatory life sentence. (790) Defendant pled guilty to engaging in a “continuing criminal enterprise,” in violation of 21 U.S.C. § 848(c). Section 848(b) provides for a mandatory life sentence if the defendant is a principal administrator or leader of the enterprise and the offense involved specified quantities of controlled substances. Defendant argued that his plea was not knowing and voluntary because the district court failed to advise him that admitting involvement with 150 kilograms of cocaine triggered a mandatory life sentence. The Third Circuit found no error. Although the court made a confusing statement suggesting that it had discretion in sentencing him, it later dispelled that confusion by admonishing him that his guilty plea exposed him to a mandatory sentence of life imprisonment. Defendant acknowledged that he understood. U.S. v. Tidwell, 521 F.3d 236 (3d Cir. 2008).
3rd Circuit says comments about wife’s offense did not breach agreement not to recommend sentence for defendant. (790) Defendant, an ophthalmologist, and his wife, an attorney, were convicted of failing to file income tax returns for a several-year period. They entered into tied plea agreements, each agreement being conditioned on the entry of a guilty plea by the other defendant. Defendant’s plea agreement contained an agreement by the government not to make a recommendation as to his sentence. His wife’s plea agreement, however, did not. Both defendants had advisory guideline ranges of 10-16 months. At sentencing, the government argued that the wife’s crime was “significant,” and required a sentence of imprisonment at the top of the guideline range. As to defendant, the government noted that consistent with the plea agreement, it made no recommendation. The Third Circuit held that the government’s action in recommending a high guideline sentence for defendant’s wife did not breach its promise in defendant’s plea agreement to not recommend a sentence for defendant. The government’s comments as to the seriousness of the offense inevitably referred to both defendants since they committed the same crime in precisely the same way. However, defendant’s attorney proposed and consented to having defendant’s wife sentenced first. It was unrealistic for defendant to expect that the government’s statement regarding his wife’s sentence would not have the capacity to impact the court when it considered his sentence. U.S. v. Hall, 515 F.3d 186 (3d Cir. 2008).
3rd Circuit says withdrawing substantial assistance motion did not breach plea agreement. (790) Defendant pled guilty to drug charges pursuant to a plea agreement in which the government agreed to file a downward departure motion at sentencing in exchange for defendant’s cooperation. However, before sentencing, defendant violated his bail conditions by failing to report to pretrial services and testing positive for illicit drugs. The violations continued, and during the execution of a bench warrant for his arrest, DEA agents seized a pill bottle containing about $4500 worth of methanphetamine and drug paraphernalia. The Third Circuit held that the government did not breach the plea agreement by withdrawing its substantial assistance motion. The agreement was based on defendant’s continued cooperation, and Paragraph 4(j) stated that “it is a condition and obligation of this cooperation agreement that the defendant not commit any additional crimes after the date of this agreement.” Defendant’s drug trafficking activities were further crimes constituting lack of cooperation under Paragraph 4(j), and this authorized the government to withdraw its motion under Paragraph 4(i). U.S. v. Schwartz, 511 F.3d 403 (3d Cir. 2008).
3rd Circuit, in reviewing breach of plea agreement, applies same standard to both government and defense. (790) Defendant’s plea agreement provided that neither party would argue for an upward or downward departure not specified in the agreement. The government claimed that defendant breached the agreement by filing a sentencing memo requesting a downward departure. The Third Circuit held that it will apply the same standard of review in considering a defendant’s breach of a plea agreement as it would apply in a government breach case. It will review the question of whether a defendant breaches his plea agreement de novo, and will impose the burden on the government to prove the beach by a preponderance of the evidence. Further, it will analyze the issue of whether a defendant has breached a plea agreement according to the same contract principles that it would apply in analyzing a government breach, including the principle that it will construe ambiguities in the agreement against the government. Here, defendant breached the agreement by arguing that his criminal history was overstated, and that the court should depart downward because of his troubled background, health and family issues. As a remedy, the court remanded to a different judge for resentencing. The sentencing judge could be influenced inadvertently by the breaching party’s prior arguments when the case was remanded for resentencing. U.S. v. Williams, 510 F.3d 416 (3d Cir. 2007).
3rd Circuit holds that agreement obligated government to consider whether defendant’s assistance merited departure. (790) Defendant’s plea agreement provided that “if the United States believes the defendant has provided ‘substantial assistance’ … the United States may request the Court to depart below the guideline range ….” The government chose not to recommend a downward departure, noting that defendant had received a significant benefit from being permitted to plead guilty to a single crime carrying only a 60-month maximum. The Third Circuit held that the government breached its promise to consider recommending a downward departure if defendant provided substantial assistance. If the phrase “may request” were to signify complete discretion, then the sentence specifying the circumstances under which the government could decline to exercise its discretion would be entirely unnecessary. By the plain language of the agreement, defendant reasonably expected that the government would consider her assistance and, if it was valuable and she did not otherwise violate the agreement, the government would move for a downward departure. The government did not reserve the right not to recommend a departure on the ground that the charge bargain turned out to be more favorable than it had originally anticipated. The government’s explanation for its failure to recommend the downward departure did not meet the good faith requirement because it was based on considerations extraneous to the assistance provided by defendant. U.S. v. Floyd, 428 F.3d 513 (3d Cir. 2005).
3rd Circuit holds that erroneous advice of maximum sentence did not affect substantial rights. (790) Based on a number of misunderstandings, the plea agreement and the district court incorrectly stated that defendant faced a maximum sentence of 20 years on each of two counts, for a total of 40 years. Defendant actually faced a maximum of five years on each count, for a total of ten years. Defendant argued for the first time on appeal that the misinformation violated Federal Rule of Criminal Procedure 11(c)(1). A defendant who fails to object to a Rule 11 error before the district court must satisfy the plain error standard of review. The defendant must show that (1) an error was committed, (2) the error was plain, and (3) the error affected substantial rights. If all three elements are met, the court may exercise its discretion to correct such an error only if the error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” The parties agreed that the first two prongs were met. Based on the totality of the record and the lack of any affirmative representations that defendant would have pled not guilty if he was properly informed at the time of his plea, the Third Circuit was unable to conclude that the correct information would have changed defendant’s decision and thereby affected the outcome of the proceedings. Thus, it found no showing of prejudice. Moreover, even if the error affected substantial rights, he could not establish that the error “seriously affected the fairness, integrity, or public reputation of judicial proceedings.” U.S. v. Dixon, 308 F.3d 229 (3d Cir. 2002).
3rd Circuit holds that consideration of statement in violation of cooperation agreement was not prejudicial. (790) Defendant’s plea agreement provided that the statements he made during his cooperation would not be used against him in any subsequent prosecution or in the determination of his sentence under the guidelines. In enhancing defendant’s sentence under § 2D1.1(b)(1) for possessing a firearm, the district court relied in part on the fact that “defendant’s own admissions at one time confirmed the fact that the guns were in the house.” Defendant offered this information while cooperating with the government, and therefore the district court’s consideration of it violated defendant’s plea agreement as well as USSG § 1B1.8. However, defendant did not object to the district court’s consideration of his statement. The Third Circuit held that the district court’s consideration of the statement did not present reversible error because defendant failed to present any evidence regarding prejudicial effect. The government presented sufficient evidence, independent of defendant’s post-cooperation statements, in support of the increase. One of defendant’s co-conspirators admitted that when he, defendant and others were dealing drugs, they were in possession of a variety of handguns. The district court could consider this information without violating defendant’s plea agreement. U.S. v. Thornton, 306 F.3d 1355 (3d Cir. 2002).
3rd Circuit holds that judge’s participation in plea process did not affect substantial rights. (790) Defendant, acting pro se, was willing to accept a guilty plea that would guarantee no more than a 36-month sentence, but he did not trust either the government counsel or his stand-by counsel. The judge then represented to defendant, before he entered a plea, that he would sentence defendant to the low end of the 37-46 month range if he pled guilty. “I cannot believe that it would not be in the public’s interest to get a plea in this case that would save, I think, tremendous amounts of money, and to what end a matter of what, nine months?” These statements by the judge violated Rule 11(c)(1)’s prohibition against judicial involvement in plea negotiations because they went beyond discussing how a possible plea would affect trial scheduling and beyond ensuring that defendant understood the plea bargain. Nonetheless, the Third Circuit held that the Rule 11 error did not affect defendant’s substantial rights. The judge’s representation clearly did not coerce defendant. Defendant was insisting on a range that would result in a 36-month sentence. He eventually accepted a plea with a range of 37-46 months on the understanding that he would receive a 37-month sentence. He was induced to do nothing beyond what he had already stated he would agree to do. The judge’s commitment to a 37-month sentence in effect transformed the plea agreement to a Rule 11(e)(1)(C) plea. Also, the judge mentioned several times that Rule 11 limited his involvement and admonished defendant that “I’m not offering you the 37 months. I’m telling you I’ll go along with it, if that’s what you people agree to.” U.S. v. Ebel, 299 F.3d 187 (3d Cir. 2002).
3rd Circuit holds that misleading defendant as to maximum supervised release term was harmless. (790) Defendant’s plea agreement expressly stated that the court could not impose more than three years of supervised release. Also, the prosecutor stated the same thing at the Rule 11 change of plea hearing, and that statement was never corrected by the court. However, defendant’s sentence included a five-year term of supervised release, as allowed under 18 U.S.C. § 924. The Third Circuit held that the incorrect advice was harmless error. The court refused to adopt a blanket rule stating that a failure to explain a supervised release term is harmless error if the term of incarceration imposed, combined with the term of supervised release imposed, is less than the maximum sentence the defendant was aware of. Rather, a court should make “an individualized and flexible inquiry” that focuses upon whether “the misinformation” led the defendant to expect a lesser penalty than he actually received. U.S. v. Raineri, 42 F.3d 36 (1st Cir. 1994). An error will be regarded as harmless under Rule 11 only if the government can establish that the error is unlikely to have affected a defendant’s willingness to waive his or her rights and plead guilty. Here, given defendant’s criminal history, a statutory maximum of life imprisonment, and defendant’s knowledge that the court had to impose at least the 15-year mandatory minimum, it was unlikely that the error in informing him of his supervised release affected his decision to plead guilty. U.S. v. Powell, 269 F.3d 175 (3d Cir. 2001).
3rd Circuit holds that failure to advise of restitution was harmless error. (790) For the first time on appeal, defendant sought to withdraw his guilty plea, claiming that the court failed to inform him that restitution could be ordered as part of the sentence. However, although the word “restitution” was never used during defendant’s plea colloquy, the government did inform defendant that he could be fined $1,260,000 plus twice the amount involved in the money laundering scheme. While restitution is not the same as a fine, the distinction was irrelevant here. See U.S. v. Electrodyne Systems, 147 F.3d 250 (3d Cir. 1998). The Third Circuit ruled that defendant’s substantial rights were not affected by the district court’s failure to specifically mention restitution or inform defendant that he could be ordered to compensate the victims for any financial loss. Defendant was informed of the potential financial exposure that his plea subjected him to, and the amount he was ordered to pay was far less than the maximum that he could have been ordered to pay. U.S. v. Mustafa, 238 F.3d 485 (3d Cir. 2001).
3rd Circuit holds that offering reasons in support of high guideline sentence did not breach promise. (790) The government promised in defendant’s plea agreement to recommend a sentence within the applicable guideline range. Defendant argued that the government only paid “lip service” to its promise and that it implicitly suggested that an upward departure was warranted by citing various aggravating factors. The Third Circuit found no breach of the plea agreement. The government recommended a sentence at the high end of the guideline range and offered reasons in support of that recommendation. It happened that those reasons also warranted an upward departure, but the government explicitly stated that it was recommending a sentence within the applicable guideline range. This was consistent with the agreement, and nothing in the agreement suggested that the government could not make the statements it did. The prosecutor’s remarks concerning the savageness of defendant’s conduct did not constitute a breach of the plea agreement. Rather, it was in response to the defense’s reference to the 120-month sentence imposed in another rape case. The comment was intended to support the government’s recommendation of a 151-month sentence, rather than the 120-month sentence requested by defendant. U.S. v. Queensborough, 227 F.3d 149 (3d Cir. 2000).
3rd Circuit holds that government adequately informed court of “full nature and extent” of cooperation. (790) Defendant argued that the government failed to inform the district court at sentencing of the “full nature and extent” of his cooperation with the government’s investigation. He claimed that the government’s information was “too little and too late”—the government did not state everything he did in his cooperation, and did not relay the details of his cooperation to the court until after the court had decided to depart upward based on his criminal history. The Third Circuit found no breach. First, the government offered a lengthy description of defendant’s cooperation activities that took up several pages of the hearing transcript. This would appear to satisfy any notion of a “full” and detailed chronology. Second, there was no provision in the agreement dictating when the government must provide its information to the court; presumably it was only required to do so before the court pronounced the sentence. Moreover, even if the government had provided the details of defendant’s cooperation before the court decided to depart upward based on defendant’s criminal history, his cooperation had no relevance to the court’s decision whether to depart under § 4A1.3. However, once the court determined that a departure based on criminal history was warranted, it then considered defendant’s cooperation when sentencing within the new range. See U.S. v. Bruno, 897 F.2d 691 (3d Cir. 1990). U.S. v. Swint, 223 F.3d 249 (3d Cir. 2000).
3rd Circuit refuses to construe PSR as obligating departure motion despite defendant’s breach. (790) Defendant’s plea agreement provided that he would fully cooperate, the government could not prosecute him for other criminal activity, and that if he provided substantial assistance, the government would move for a downward departure. The agreement further provided that if defendant committed any additional crimes, “the non-prosecution provision of this agreement shall be null and void. All other provisions of this agreement shall remain in full force and effect….” After entering the agreement but before sentencing, defendant committed two more crimes. Defendant contended that the language of the plea agreement still required the government to move for the departure, claiming that under the quoted language, the only remedy available to the government if he committed other crimes was the rescission of its promise not to prosecute him for other offenses. The Third Circuit found this interpretation absurd, since this would mean that no violation of the agreement could extinguish the government’s promise to move for the downward departure. However, the “Sentencing” section of the agreement, which discussed the § 5K1.1 motion, specifically conditioned the government’s moving for the downward departure on (1) defendant’s fully complying with the agreement, and (2) his providing substantial assistance. One of the basic requirements of the agreement was that defendant commit no more crimes. After his first arrest, the government warned defendant that if he engaged in further illegal activity it would not make the departure motion. U.S. v. Swint, 223 F.3d 249 (3d Cir. 2000).
3rd Circuit finds government accepted obstruction plea as satisfaction of breach. (790) In December 1994 defendant signed a letter agreement which said that the information he provided could only be used against him if he failed to plead guilty to certain listed charges. Defendant then fabricated evidence to exculpate a co-conspirator. In January 1995, defendant admitted this deception, and aided the government in obtaining evidence incriminating the co-conspirator. Defendant was then indicted on the listed charges and an obstruction of justice count stemming from his attempted cover-up of the co-conspirator. In March 1995, the parties entered into a formal plea agreement. Despite the prosecutor’s § 5K1.1 motion, the district court departed upward based upon matters obtained from defendant’s cooperation, ruling that the cooperation agreement was null. The Third Circuit ruled that although defendant partially breached the plea agreement, the government by its subsequent conduct and its execution of a formal plea agreement, agreed not to use the information defendant provided against himself. The government accepted defendant’s guilty plea to obstruction of justice as a satisfaction of the breach and did not attempt to avoid the December 1994 agreement. The government’s performance in continuing the cooperation arrangement without any warning to defendant that its former promise no longer applied constituted a waiver of the breach. The district court erred in ruling that the cooperation agreement was null. U.S. v. Baird, 218 F.3d 221 (3d Cir. 2000).
3rd Circuit holds that government promised not to use incriminating information if defendant pled guilty. (790) Defendant signed a letter drafted by the government which stated that an earlier “off-the-record” agreement no longer applied and that “[f]rom now on,” information furnished was “on the record, and could be admitted against you in the future if you failed to plead guilty” to various charges. Defendant argued that this clause meant that the information garnered from his assistance could only be used against him if he failed to plead guilty to the offenses described in the letter. The government, however, claimed that all information was “fully on the record,” and that the disputed statement was merely a warning of the consequences of a failure to plead, and not a promise to immunize cooperation evidence upon entry of a guilty plea. The Third Circuit, construing the ambiguity against the government, concluded that the agreement stated that if defendant did plead guilty, the information would not be used against him in the future in any proceeding, including his own sentencing. U.S. v. Baird, 218 F.3d 221 (3d Cir. 2000).
3rd Circuit says government may make § 5K1.1 motion and refuse to recommend departure. (790) At sentencing, the government declared that its § 5K1.1 motion merely granted the district court “permission” to depart downward, but that the government “certainly [did not] recommend a downward departure.” Defendant argued that the government breached the plea agreement and acted in bad faith by failing to make “a more concerted 5K1.1 downward departure motion at the time of sentencing.” The Third Circuit held that the government’s refusal to recommend a downward departure despite making the § 5K1.1 motion did not breach the plea agreement. The plain terms of the plea agreement required only that the government file a § 5K1.1 motion in order to give the court the power to depart downward. The agreement did not require the government to recommend a downward departure at sentencing and did not prohibit the government from stating at the sentencing hearing that it did not recommend a departure. U.S. v. Medford, 194 F.3d 419 (3d Cir. 1999).
3rd Circuit says government retained § 5K1.1 discretion even though agreement did not reserve it. (790) Defendant’s plea agreement provided that if defendant fully complied with the terms of the agreement and provided substantial assistance, the government would move for a § 5K1.1 departure. The district court interpreted the plea agreement to require the defendant to satisfy the government that he had complied with its terms and provided substantial assistance to the government. Defendant claimed that the court, not the prosecution, should determine this issue of fact on an objective basis and the government had the burden of proving that defendant did not comply with his plea agreement obligations. The Third Circuit held that the government retained its discretion under § 5K1.1 to determine whether defendant provided substantial assistance, even though the plea agreement did not contain any language expressly reserving this discretion. The agreement contemplated that any downward departure motion be made “pursuant to” 18 U.S.C. § 3553(e) and USSG § 5K1.1. Thus, the plea agreement was implicitly subject to the statute and the guidelines, and both expressly lodge the decision to make the motion with the government. Thus, the court could only review the government’s refusal to move for a departure for bad faith or an unconstitutional motive. U.S. v. Huang, 178 F.3d 184 (3d Cir. 1999).
3rd Circuit says defendant’s own breach did not entitle him to plea withdrawal. (790) Defendant argued that he should have been permitted to withdraw his guilty plea because the plea agreement expressly provided that it would be “null and void” if it was established that he violated any of its provisions. The Third Circuit rejected this “remarkable proposition.” Defendant was arguing that when the government refuses to move for a downward departure because the defendant has not performed under the plea agreement, the defendant should be entitled to withdraw his plea. “This would reward a defendant for his breach of the plea agreement and turn the entire sentencing process in the nation into chaos.” U.S. v. Huang, 178 F.3d 184 (3d Cir. 1999).
3rd Circuit holds government recommendation of bottom of range did not breach plea agreement. (790) The government promised in defendant’s plea agreement that it would recommend the mandatory minimum sentence of five years’ imprisonment. However, the PSR discovered that defendant was a career offender, with a guideline range of 188-235 months. At sentencing, the government recommended a sentence at the bottom of that range. The Third Circuit held that this recommendation did not breach the plea agreement. In U.S. v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998), the guideline range also exceeded the stipulated range, and the government beached the agreement by making a statement to persuade the court to impose a severe sentence. The Nolan-Cooper court suggested that when the applicable guideline range has a low end above the stipulated range, the government should say nothing further. However, there is an exception to this rule ¾ the government does not breach the plea agreement if it states that in light of the changed circumstances, the court should impose a sentence at the lowest end of the applicable range. The government’s recommendation here was not inconsistent with defendant’s reasonable expectations. U.S. v. Milner, 155 F.3d 697 (3d Cir. 1998).
3rd Circuit holds government breached agreement by pointing out facts contrary to stipulation. (790) Defendant, an attorney, agreed to launder funds for an undercover agent posing as a drug dealer. The government stipulated in the plea agreement that it would “not oppose” defendant’s argument against a § 3B1.3 special skill enhancement. However, at sentencing, the prosecutor told the court that on several occasions defendant mentioned she could use her escrow account to hide the agent’s money. The government argued that the clause in the agreement reserving to the government the right “to comment on the evidence and circumstances of the case and bring to the Court’s attention all facts relevant to sentencing” allowed it to make this statement. The Third Circuit disagreed, holding that the government’s statement breached the agreement. A promise not to oppose a defendant’s motion on an issue is a promise not to attempt to influence the defendant’s sentence on that particular issue. This may mean that the government must be silent even if it disagrees with the defendant’s characterization of the facts. U.S. v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998).
3rd Circuit finds government violated plea agreement by recommending sentence at high end of range. (790) In defendant’s plea agreement, the government promised that it would make whatever sentencing recommendation it deemed appropriate within the stipulated guideline range of 41-51 months. The district court determined that the applicable range was actually 63-78 months. At sentencing, the government said that because defendant’s actions were egregious, the court should sentence defendant at the higher end of the guidelines. When defense counsel protested that this violated the plea agreement, the government changed its position and said it was arguing for the higher end of the stipulated guideline range. The court then said it would give no weight to the government’s recommendation. The Third Circuit agreed that the government breached the plea agreement. Once the court determined that the low end of the applicable range was 63 months, the government should have said nothing further. The government’s comments could only be interpreted as an attempt to influence the court to impose a longer sentence than stipulated to in the plea agreement. U.S. v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998).
3rd Circuit rules government breached promise not to take position on acceptance of responsibility. (790) The government promised in defendant’s plea agreement not to oppose defendant’s request for an acceptance of responsibility reduction. However, at sentencing, the prosecutor told the court that the government did not believe the information defendant gave in her proffers was complete, and that there were no other facts to support a three-level acceptance of responsibility reduction. The prosecutor’s comments were in response to the argument that defendant provided complete information. The Third Circuit held that the government’s comments violated the plea agreement because they provided the court with a basis upon which to reject defendant’s claim that she should receive a three-level acceptance of responsibility reduction. The fact the government’s comments were made in response to a question by the court did not matter. In such a situation, the government must inform the court that it cannot answer the question without breaching its plea agreement. U.S. v. Nolan-Cooper, 155 F.3d 221 (3d Cir. 1998).
3rd Circuit holds that court’s incorrect advice as to maximum fine was harmless error. (790) When taking defendant corporation’s plea, the district judge, apparently misled by defendant’s plea agreement and the government’s plea memorandum, advised defendant’s representative that the maximum fine for one count was the greatest of $10,000 or twice the gain or twice the loss. In fact, the correct maximum statutory fine on this count was the greatest of $500,000 or twice the loss or gain. The Third Circuit held that the incorrect advice was harmless error since the total fine actually imposed was less than the total fine to which defendant believed it was exposed. The district court correctly advised defendant that the maximum fine on its other count was one million dollars or twice the gain or loss. The district court imposed a total fine for both counts of one million dollars, which was less than the $1,010,000 exposure defendant believed he had. Under these circumstances, the error was harmless and defendant would not be permitted to withdraw its plea on these grounds. U.S. v. Electrodyne Systems Corporation, 147 F.3d 250 (3d Cir. 1998).
3rd Circuit says plea agreement did not preclude examining government’s good faith in refusing to make § 5K1.1 motion. (790) Defendant’s plea agreement said the government would make a § 5K1.1 motion if it determined “in its sole discretion” that defendant had provided substantial assistance. The government refused to make the motion, and the district court found it had no jurisdiction to review the exercise of the government’s “sole discretion.” On appeal, the Third Circuit reversed, holding that a district court has the power to examine the prosecutor’s “good faith” despite this language. The defendant retains a reasonable expectation that the government’s discretionary evaluation of his cooperation will be made in good faith. An evidentiary hearing is not required every time a defendant challenges the prosecutor’s exercise of discretion. Rather, if the government explains its reasons for not making the § 5K1.1 motion, the defendant must make a showing of bad faith to trigger the need for a hearing on the issue. Here, although defendant alleged bad faith, the district court did not require the government to explain its refusal because it ultimately concluded it had no jurisdiction to review the government’s decision. On remand, the government should have the opportunity to formally state its explanation. U.S. v. Isaac, 141 F.3d 477 (3d Cir. 1998).
3rd Circuit holds supervised release violated Rule 11(e)(1)(C) plea agreement. (790) Defendant executed a Fed. R. Crim. P. 11(e)(1)(C) plea agreement that provided for a nine-month term of incarceration, a one-month period of home confinement, a $10,000 fine and a $50 assessment. The agreement provided that if the district court rejected the stipulated sentence or imposed a more severe penalty, defendant would be entitled to withdraw his plea. The district court accepted the plea but imposed a one-year period of supervised release, including one month of home confinement. Defendant argued that the sentence was more severe than stipulated and therefore he should be given the opportunity to withdraw his plea. The Third Circuit agreed, holding that supervised release constitutes punishment, and therefore the one-year term violated the plea agreement. Neither the agreement nor the stipulated sentence mentioned supervised release. The court remanded the case to the district court to impose the sentence agreed to by the parties or to give defendant the opportunity to withdraw his plea. U.S. v. Gilchrist, 130 F.3d 1131 (3d Cir. 1997).
3rd Circuit upholds refusal to file 5K1.1 motion where defendant failed to provide complete information. (790) Defendants argued that the government’s decision not to file a § 5K1.1 motion for a substantial assistance departure violated their plea agreements. The Third Circuit upheld the district court’s finding that defendants breached their agreement by failing to provide the government with complete information about the offense. The government conceded that the information defendants provided was truthful and accurate, but argued that it was not “complete” as required by the plea agreement. An experienced police investigator testified that because defendants had both been involved in the crack cocaine business for several years, the information that they would have gathered while in the business far exceeded what they were willing to tell the government. These suspicions were supported by defendants’ conduct during the debriefing sessions. Defendants demanded that they be interviewed together, and during the interview, when one would begin to discuss something, the other defendant would tell him no, . . . we’re not going to tell them about that.” U.S. v. Roman, 121 F.3d 136 (3d Cir. 1997).
3rd Circuit finds government did not violate plea agreement by making “lukewarm endorsement.” (790) The parties stipulated as part of defendant’s plea agreement that his eight firearms offenses constituted a single group under § 3D1.2. The probation office concluded otherwise, and the district court agreed. Defendant argued that the government breached his plea agreement by making a “lukewarm endorsement” of the stipulation. The Third Circuit disagreed, finding that the government merely pointed out to the court the conflict between the plea agreement and the probation report. The government explained to the court why it had discretion to sentence in accordance with the stipulation. Nor did the government breach the agreement by arguing on appeal that the district court properly grouped the counts separately. The plea agreement specifically stated that it did not limit the government’s response to post-sentencing matters. U.S. v. Griswold, 57 F.3d 291 (3d Cir. 1995).
3rd Circuit holds that defendant did not attempt to withdraw guilty plea. (790) Defendant argued that the district court should have given him the opportunity to withdraw his guilty plea after he learned that the government did not intend to recommend a sentence below the 10-year statutory minimum. The Third Circuit found that defendant in fact did not attempt to withdraw his plea. Although defendant claimed that he expressed his desire to withdraw his plea both in conversations with his attorney and in a letter to the court, nothing in the docket sheet or the record supported these claims. Moreover, defendant did not express a desire to withdraw his plea when he addressed the court at sentencing. U.S. v. Melendez, 55 F.3d 130 (3d Cir. 1995), aff’d on other grounds, Melendez v. U.S., 518 U.S. 120, 116 S.Ct. 2057 (1996).
3rd Circuit rules that defendant’s continued criminality relieved government of obligation to move for downward departure. (790) The 3rd Circuit rejected defendant’s claim that the government’s failure to move for a downward departure was a breach of his plea agreement. Defendant concealed his criminal conduct that occurred after he signed the plea agreement and affirmatively lied to the government. Contrary to defendant’s assertions, the plea agreement obligated defendant to disclose “any crime about which he [had] knowledge,” not simply those of his co-defendants. His promise to cooperate with the government was inconsistent with his continuing involvement in criminal conduct. His conduct relieved the government of its obligation under the plea agreement to move for a downward departure. ), superseded by guideline on other grounds as state in U.S. v. Corrado, 53 F.3d 620 (3d cir. 1995).
3rd Circuit holds refusal to file § 5K1.1 motion did not breach plea agreement. (790) The plea agreement required defendant to provide truthful information and to testify truthfully at trial. Defendant agreed that if he gave any materially false information or testimony, his plea agreement would be void. The government agreed to file a § 5K1.1 motion if defendant fully complied with the agreement. Defendant breached the plea agreement by filing an affidavit in support of a motion to withdraw his plea in which he falsely stated that he was innocent. If the affidavit were true, his earlier trial testimony would have been perjury. The Third Circuit held that the government did not breach the plea agreement by refusing to move for a § 5K1.1 departure. The plea agreement gave the government the right to withhold the motion based on defendant’s false affidavit. Even if defendant filed the affidavit on advice of ineffective counsel, this would not excuse the lie. It was not “unfair” for the government to reap the benefits of the plea agreement (his earlier testimony) and avoid its obligation to him. U.S. v. Carrara, 49 F.3d 105 (3d Cir. 1995).
3rd Circuit affirms denial of withdrawal of plea based on fear of a substantial sentence. (790) The 3rd Circuit affirmed the district court’s denial of defendant’s motion to withdraw his guilty plea. Defendant claimed that he wanted to withdraw his plea because he owed someone a substantial sum of money and had been “set up.” The district court, however, found that the reason defendant sought to withdraw the plea was his fear of a substantial sentence, and that the reasons offered by defendant were merely a “post hoc” attempt to justify his motion. At the hearing to withdraw the plea, defendant acknowledged he did all that the government alleged, and did not mention coercion or that he was forced in any manner to sell drugs. He did not meet his burden of proving an entitlement to withdraw his plea. U.S. v. Jones, 979 F.2d 317 (3rd Cir. 1992), superseded by statue on other grounds as stated in U.S. v. Roberson, 194 F.3d 408 (3d Cir. 1999).
3rd Circuit rules government breached stipulation that offense did not involve more than minimal planning. (790) The government stipulated in defendant’s plea agreement that his offense did not involve more than minimal planning. At sentencing, the prosecutor noted the stipulation, but pointed out one act by defendant which constituted “an affirmative step” indicating defendant was “concealing something.” The 3rd Circuit ruled that the government breached its obligation under the plea agreement. The characterization of defendant’s conduct as an affirmative step, rather than a “significant” affirmative step was not relevant, since the government’s meaning and intention were clear. The government’s statement was not a permissible reference to the nature and extent of defendant’s activities, because it was made in the course of a discussion about the more than minimal planning stipulation. The government was aware of defendant’s concealment when it entered into the plea agreement; it was not free to breach the agreement because it decided it made a bad bargain. U.S. v. Badaracco, 954 F.2d 928 (3rd Cir. 1992).
3rd Circuit articulates standards for reviewing claim that government breached plea agreement. (790) Defendant contended that the government breached its plea agreement with him. The 3rd Circuit articulated the standard of review of such a claim. There are three questions to be determined, each with a different standard of review. First, the court must determine the facts of the case, i.e. what are the terms of the agreement and the conduct of the government. The appellate court’s review of those findings is limited by the “clearly erroneous” standard. Second, the court must determine whether the government’s conduct violated the terms of the plea agreement. This is a question of law and the appellate court’s review is plenary. Finally, if a violation occurred, the court must determine an appropriate remedy. The case must be remanded for either resentencing or withdrawal of the guilty plea. U.S. v. Hayes, 946 F.2d 230 (3rd Cir. 1991).
3rd Circuit rules that government violated promise not to recommend a specific sentence. (790) Defendant’s plea agreement provided that the government would make no specific sentencing recommendation. In the government’s written response to defendant’s objections to the presentence report, it stated that “the government advocates a sentence within the standard range of the guidelines as to Count One (a range of 57 to 60 months incarceration) . . . and a lengthy period of incarceration on the nonguidelines counts . . . .” At the sentencing hearing, the government on two occasions stated that it believed that a lengthy term of incarceration was appropriate. The 3rd Circuit ruled that the government breached the plea agreement’s promise not to recommend a specific sentence. The identification of 57 to 60 months incarceration to the exclusion of a fine or probation “clashe[d] with the plain language of the agreement itself as well as with the defendant’s request for probation.” The case was remanded for the district court to determine whether the appropriate remedy was specific performance of the plea agreement or withdrawal of the plea. U.S. v. Hayes, 946 F.2d 230 (3rd Cir. 1991).
3rd Circuit upholds consideration of evidence suppressed due to Fourth Amendment violation. (790) Defendant challenged the consideration at sentencing of one kilogram of cocaine which the district court had earlier suppressed due to a Fourth Amendment violation. The 3rd Circuit upheld the district court’s consideration of this evidence, citing “two strong currents in the law, one urging caution in invoking the exclusionary rule in Fourth Amendment cases, and the other permitting broad discretion in receiving evidence of conduct relevant to sentencing.” However, because defendant’s plea agreement stipulated to a lesser amount of cocaine, the court remanded the case to give defendant the opportunity to withdraw his plea. Although the plea agreement stated that the judge was not bound by any stipulations, the defendant may not have understood this to apply to the stipulated drug amount. Neither the prosecutor nor the defense anticipated this unexpected legal issue of first impression, which “frustrated an agreement clearly contemplated by all concerned.” U.S. v. Torres, 926 F.2d 321 (3rd Cir. 1991).
3rd Circuit upholds government’s withdrawal of proposed plea agreement. (790) The government offered a plea agreement to three defendants, but demanded that all three accept the agreement. When only two of the defendants agreed to the plea package, the government withdrew the proposal. The proposal was never presented to the district court. The three defendants were tried and convicted by a jury. The 3rd Circuit rejected the argument that the government’s withdrawal of the plea agreement was improper. Since the government had made unanimous acceptance of the agreement a condition precedent to the agreement, the district court did not err in refusing to order specific performance of the agreement. The court also rejected the argument that the prosecutor’s requirement of unanimous acceptance violated due process. Neither defendant who agreed to the plea package detrimentally relied on the terms of the agreement and therefore, trial by jury was an adequate remedy for any impropriety that may have arisen from the government’s action. U.S. v. Gonzalez, 918 F.2d 1129 (3rd Cir. 1990).
3rd Circuit rules that defendant was properly advised of sentencing guidelines at time of plea. (790) Defendant argued that his plea should have been set aside because the district court failed to advise him of the “bottom end” of the guideline range for his offenses, and failed to advise him that the minimum period of supervised release would be three years. The 3rd Circuit noted that even under the December 1, 1989 amendment to Fed.R.Crim.P. 11(c)(1), the court is not required to advise the defendant which guidelines will be important. Moreover, the minimum term of supervised release was set forth in the plea agreement. U.S. v. Henry, 893 F.2d 46 (3rd Cir. 1990).
4th Circuit rejects ACCA resentencing despite incorrect advice about mandatory minimum. (790) Defendant pled guilty to being a felon in possession of a firearm, and was sentenced to a mandatory minimum 15-year sentence under the Armed Career Criminal Act. Both in his plea agreement and at his plea hearing, defendant was incorrectly advised that he faced a maximum sentence of only ten years. He contended that this error constituted a breach of his plea agreement and on appeal asked for a ten-year sentence. The Fourth Circuit refused. Although the plea agreement admittedly misstated the applicable statutory maximum sentence, the government never guaranteed defendant a ten-year sentence. Moreover, even if the government had breached a promise for a particular sentence, defendant would not have been entitled to the specific performance he sought. The ACCA mandates a 15-year sentence for any defendant who qualifies as an Armed Career Criminal. Because defendant was subject to the ACCA enhancement, the district court could not have imposed a ten-year sentence. U.S. v. Davis, 689 F.3d 349 (4th Cir. 2012).
4th Circuit holds that consecutive sentences violated plea agreement. (790) Defendant’s plea agreement provided that his federal sentence “shall be served concurrent with the state sentence” defendant was currently serving. However, the district court ordered defendant’s 46-month federal sentence to be served consecutive to his state sentence. The Fourth Circuit agreed with defendant that the district court’s consecutive sentence contravened the plea agreement. The concurrent sentence provision constituted an agreement for a specific sentence under Rule 11(c)(1)(C). Thus, when the sentencing court implicitly rejected the concurrent sentence provision and instead imposed a consecutive sentence, it was required, pursuant to Rule 11(c)(5), to give defendant an opportunity to withdraw his guilty plea. The concurrent sentence provision was drawn in mandatory and plain terms. Notably, the judge said the plea agreement was being “conditionally approved.” This provided strong support for the proposition that the plea agreement was understood to contain a type C provision. U.S. v. Lewis, 633 F.3d 262 (4th Cir. 2011).
4th Circuit reverses where prosecutor’s failure to recommend role reduction breached plea agreement. (790) Defendant sought to be resentenced based on the government’s failure to recommend a minor role reduction as required by his plea agreement. He did not raise this claim below. The government conceded that it breached the plea agreement by failing to recommend the minor role reduction. Thus, defendant established the first two prongs of the plain error standard. The Fourth Circuit held that defendant also showed that the error affected his substantial rights and affected the fairness and integrity of the judicial proceedings. Therefore, defendant established plain error and was entitled to be resentenced. Defendant, who essentially was a part-time courier, demonstrated a reasonable probability that the outcome of his sentencing would have been different had the government made the appropriate recommendation. Finally, when the government breaches a plea agreement, the integrity of the system may be called into question. Here, there were no countervailing factors that would allow the government to renege on its promise to make a minor role recommendation for defendant. U.S. v. Dawson, 587 F.3d 640 (4th Cir. 2009).
4th Circuit finds use of threat-assessment report did not violate plea agreement and any error was harmless. (790) After defendant filed a motion for a diminished capacity departure, a law enforcement officer prepared a “threat assessment” report on defendant. The officer received authorization from the prosecutor and defense counsel to interview defendant. After the interview, the government filed a motion seeking an upward departure to “protect the public” from defendant, and attached to the motion a copy of the officer’s threat assessment report. The Fourth Circuit held that the government’s use of the threat-assessment report did not violate the parties’ plea agreement. Although the plea agreement stated that incriminating information defendant provided as a result of his cooperation would not be used against him, the interview conducted here was not to investigate and prosecute others. Any error committed by the district court in considering the report was harmless. The court said it did not consider the report to be significant in fashioning its upward departure, and said that it concluded independently of the report that defendant’s criminal record presented “significant” concern. U.S. v. Seay, 553 F.3d 732 (4th Cir. 2009).
4th Circuit vacates for failure to advise defendant of 15-year mandatory minimum sentence. (790) Defendant pled guilty to a variety of drug and firearms charges. His plea agreement spelled out that he faced a minimum sentence of 30 years, but the probation officer also recommended an armed career criminal sentence under 18 U.S.C. § 924(c). This meant that defendant actually faced a minimum sentence of 45 years. When he sought to withdraw his plea, the district court refused. The Fourth Circuit held that it was error to accept defendant’s plea to felon-in-possession charges, without warning him that he faced a mandatory minimum sentence of 15 years if he qualified as an armed career criminal. Defendant made it clear he would not have pled guilty if he had known he faced a minimum of 45 years. The government argued that the court should vacate the felon-in-possession counts only, but the Fourth Circuit found that the proper remedy was to vacate all guilty pleas and convictions. Given the interplay between the charges, defendant could not make an informed decision about whether to plead guilty to the § 924(c) charges without knowing his likely sentence on the § 922(g) charges. U.S. v. Hairston, 522 F.3d 336 (4th Cir. 2008).
4th Circuit holds that plea agreement did not obligate government to move for additional acceptance reduction. (790) Defendant’s plea agreement provided that contingent upon his payment of a $100.00 special assessment, and if he complied with certain other requirements in the plea agreement, the government would recommend a two or three-level acceptance of responsibility reduction. However, at sentencing, the government refused to recommend either reduction, claiming that defendant had provided incomplete information and had failed to pay the $100 assessment. The district court granted the two-level reduction, but refused to require the government to move for the third-level reduction. The Fourth Circuit held that government was not required to move for the acceptance of responsibility reduction. The agreement clearly stated that defendant’s failure to timely pay the special assessment relieved the government of any obligation under the plea agreement to move for the additional one-level reduction. Although defendant explained why he could not pay the assessment, he offered no legal justification for why the court should not enforce the terms of the bargain to which the parties agreed. The record also supported a finding that defendant had no cooperated fully “in the opinion of the United States.” Either basis justified the conclusion that the plea agreement did not obligate the government to move for the third-level reduction. U.S. v. Chase, 466 F.3d 310 (4th Cir. 2006).
4th Circuit holds that judge’s assurances during plea colloquy modified plea agreement. (790) Defendant sought to contest the drug weight attributed to him at sentencing, but the district court refused to hear evidence on this point, ruling that defendant’s plea agreement precluded him from doing so. The Fourth Circuit held that the terms of the plea agreement were modified by the district court’s repeated assurances during the plea colloquy that defendant would have a later opportunity to challenge the drug weight. Although the plea agreement limited defendant’s ability to contest the drug weight attributed to him, at his plea colloquy the judge repeatedly assured defendant that he would have the opportunity at sentencing to contest the drug weight. The government not only failed to clarify or correct these statements, but it appeared to buttress the court’s interpretation of the agreement, stating that “there will be a more full hearing at sentencing concerning the drug weight issue.” Defendant clearly relied to his detriment on the explanations he was given, since he claimed at the plea colloquy that his only disagreement with the government was to the total quantity of drugs involved. U.S. v. Wood, 378 F.3d 342 (4th Cir. 2004).
4th Circuit holds that Double Jeopardy clause did not entitle defendant to credit for time on probation. (790) Defendant’s plea agreement included his agreement to be sentenced within a 18-24 months range, and not to seek a downward departure. Contrary to this agreement, however, defendant presented evidence at sentencing that he suffered from a diminished mental capacity. Based on this evidence, the district court departed downward, sentencing defendant to four years’ probation. On the government’s appeal, the Fourth Circuit held that defendant breached his plea agreement, and remanded. On remand, the district court sentenced defendant to 18 months’ imprisonment, but then credited him with over 18 months’ that he served on probation during the pendency of the government’s appeal. The district court found that the Double Jeopardy clause compelled it to credit defendant’s service of probation against his 18-month sentence of imprisonment. The Fourth Circuit rejected this claim. Because of defendant’s breach, the government was deprived of its bargain that defendant serve a sentence of at least 18 months’ imprisonment. Defendant could not now claim that his breach should be rewarded with the lesser sentence. Such a conclusion would not only reward defendant unjustly, but would also encourage “other artful dodges.” U.S. v. Bowe, 309 F.3d 234 (4th Cir. 2002).
4th Circuit says defendant did not show prejudice from advice that became incorrect after Apprendi. (790) Defendant pled guilty before the Supreme Court’s decision in Apprendi v. New Jersey, 530 U.S. 466 (2000) and the Fourth Circuit’s decision in U.S. v. Promise, 255 F.3d 150 (4th Cir. 2001) (en banc). Therefore, during the plea colloquy, the district court did not inform defendant that he faced a maximum sentence of life imprisonment, instead of the maximum sentence of 20 years allowed after Apprendi. Defendant contended that by virtue of these errors, his plea was not knowing and voluntary, and therefore should be vacated. Because the law changed between the time of the plea and this appeal, the Fourth Circuit treated the court’s now-incorrect information as plain error. To merit relief, defendant had to establish that he was prejudiced by the error. Defendant made no argument in his brief as to how the court’s advice about the maximum sentence affected his decision to plead guilty, nor did he contend that he would not have pleaded guilty if he had known that his sentence could not have exceeded 20 years. Defendant did not meet his burden of establishing “that, absent the Rule 11 errors, he would not have entered into his plea agreement.” U.S. v. Cannady, 283 F.3d 641 (4th Cir. 2002).
4th Circuit holds that failure to advise of mandatory minimum sentence was not plain error. (790) The district court advised defendant of the statutory maximums for each count but did not advise him of the statutory mandatory minimums for his 18 U.S.C. § 924(c) firearms offense, as required by Rule 11(c)(1). Because defendant did not seek withdrawal of his guilty plea, his challenge to the violation of Rule 11(c)(1) was subject to plain error review. Although the district court’s non-compliance with Rule 11(c)(1) satisfied the first two prongs of plain error review, the Fourth Circuit ruled that the error did not affect defendant’s substantial rights. His plea agreement provided, in unambiguous terms, all of the information that would have been provided by the district court’s compliance with Rule 11(c)(1). Defendant did not contend that he did not understand the statutory mandatory minimum sentence as provided in the plea agreement or that the district court’s recitation of the mandatory minimum would have aided his understanding. The fact that the plea agreement did not advise defendant that his firearm sentence was required to run consecutively to his drug trafficking sentence did not matter. Rule 11 does not require a district court to inform the defendant of mandatory consecutive sentencing. U.S. v. General, 278 F.3d 389 (4th Cir. 2002).
4th Circuit holds that defendant failed to prove that Rule 11 errors affected substantial rights. (790) The district court incorrectly informed defendant that he faced a mandatory minimum sentence of ten years’ imprisonment and a maximum sentence of life. Defendant actually did not face a mandatory minimum sentence and was only subject to a maximum sentence of 20 years on each count. Defendant also was not informed that the court’s failure to accept the government’s sentencing recommendation would not constitute grounds for him to withdraw his plea. Although both of these errors were plain, the Fourth Circuit ruled that defendant failed to show that the errors affected his substantial rights. Although defendant claimed that he might have gone to trial rather than plead guilty had he known that he faced a maximum sentence of only 20 years, the eight separate charges against defendant meant that he faced a potential sentence far exceeding 20 years. As for his other claim, defendant was informed by the court, prior to accepting his plea, that the court was not bound by the government’s sentencing recommendation. Therefore, to prevail on this point, defendant would have had to demonstrate that he would not have entered into the plea agreement if he had known that the court’s rejection of the sentencing recommendation would not give him cause to withdraw. Defendant offered no support for this proposition. U.S. v. Martinez, 277 F.3d 517 (4th Cir. 2002).
4th Circuit holds that plain error analysis is proper standard for review of forfeited Rule 11 claims. (790) Defendant argued, for the first time on appeal, that the district court committed four Rule 11 errors in accepting his plea. The Fourth Circuit joined the majority of circuits which have concluded that plain error analysis, rather than harmless error, is the proper standard for reviewing forfeited errors in the Rule 11 context. See U.S. v. Bejarano, 249 F.3d 1304 (11th Cir. 2001); U.S. v. Driver, 242 F.3d 767 (7th Cir. 2001); U.S. v. Gandia-Maysonet, 227 F.3d 1 (1st Cir. 2000); U.S. v. Bashara, 27 F.3d 1174 (6th Cir. 1994). But see U.S. v. Odedo, 154 F.3d 937 (9th Cir. 1998). The interests of judicial economy are far better served by a plain error standard of review. The government bears the burden under the harmless error approach of showing that the error was not prejudicial, which means demonstrating that a defendant would still have pleaded guilty absent the error. The record will likely be sparse with respect to a defendant’s knowledge and intentions if the defendant does not move to withdraw the plea, and the government would have substantial difficulty sustaining that burden, even when the error was truly harmless. U.S. v. Martinez, 277 F.3d 517 (4th Cir. 2002).
4th Circuit holds that defendant’s presentation of evidence concerning mental capacity violated plea agreement. (790) Defendant’s plea agreement stipulated that “no departures will be sought by either party and all arguments are limited to recommendations regarding a sentence within the applicable range of the U.S. Sentencing Guidelines.” However, at sentencing, defense counsel advised the court that it wished to be heard, claiming that the defense had discovered information about defendant’s mental capacity that it did not know at the time defendant entered the plea. The government then moved to declare the plea agreement null and void, but the court denied the motion. After hearing evidence presented from both sides concerning defendant’s mental condition, the court departed downward under § 5K2.13. Because the plea agreement was unambiguous in its prohibition of defendant’s right to present evidence to justify a downward departure on any ground, the Fourth Circuit held that the district court erred as a matter of law in denying the government’s motion to nullify the agreement. While defendant did not explicitly request a downward departure, his suggestion that the district court should consider whether any imprisonment should be imposed was a thinly veiled end-run around his promise not to seek a departure. U.S. v. Bowe, 257 F.3d 336 (4th Cir. 2001).
4th Circuit holds that waiver of appeal not enforceable where opposing party breaches plea agreement. (790) The district court’s denied the government’s motion to set aside defendant’s plea agreement on the grounds that he breached the agreement. Despite a waiver of appeal in the agreement, the government appealed the denial of its motion and other aspects of defendant’s sentence. In U.S. v. Guevara, 941 F.2d 1299 (4th Cir. 1991), the Fourth Circuit held that a plea agreement provision that bars the defendant from appealing, but is silent as to the government’s right to appeal, must be construed as imposing a reciprocal limitation on the government’s right to appeal. Here, the Fourth Circuit held that a party’s waiver of the right to seek appellate review is not enforceable where the opposing party breaches a plea agreement. Had the government breached the plea agreement, defendant would have been bound by his waiver. This principle must be applied reciprocally. Further, where a defendant has materially breached the terms of the plea agreement, the government is released from its implied reciprocal promise under Guevara not to appeal the merits of a judgment of conviction or sentence. Because of defendant’s alleged breach of the plea agreement, the government was not barred from seeking review of the denial of its motion to nullify the plea agreement. U.S. v. Bowe, 257 F.3d 336 (4th Cir. 2001).
4th Circuit holds that plea agreement’s silence did not waive government’s § 5K1.1 discretion. (790) While defendant and others were hunting in the nearby woods, a woman was shot and killed while she stood on her property. Defendant pled guilty to being a felon in possession of a firearm. His plea agreement provided that in return for his production of his firearm and his truthful and complete cooperation with authorities, the government would move for a § 5K1.1 departure. The government refused to make the motion since defendant denied involvement in the shooting. An ATF agent testified regarding his investigation of the shooting, which implicated defendant as the shooter. The Fourth Circuit held that the district court did not clearly err in finding that defendant failed to provide “truthful and thorough cooperation.” Although the agreement did not contain the customary language explicitly reserving the government’s discretion to make or withhold a § 5K1.1 motion, the panel held that the government retained the responsibility and the discretion to evaluate whether defendant’s cooperation was truthful. A waiver of prosecutorial discretion by way of a plea agreement must be explicit. U.S. v. Snow, 234 F.3d 187 (4th Cir. 2000).
4th Circuit holds violation of plea agreement relieved government of obligations. (790) Defendant pled guilty to mail fraud and money laundering. He promised in his plea agreement to aid the government in identifying and recovering his assets. In return, the government promised to recommend an acceptance of responsibility reduction. During the 75-day period between the guilty plea and sentencing, defendant increased his credit card debt by almost $48,000. The government refused to recommend the § 3E1.1 reduction, believing defendant had breached the plea agreement by failing to use all of his assets for restitution. The Fourth Circuit held that defendant’s violation of the plea agreement relieved the government of its promise to recommend the § 3E1.1 reduction. Instead of fully engaging in the restitution process, defendant chose to use his credit cards to pay off various unrelated creditors. The district court was not required to give notice that it did not intend to grant him the § 3E1.1 reduction. U.S. v. Walker, 112 F.3d 163 (4th Cir. 1997).
4th Circuit suggests courts require plea agreements to be reduced to writing. (790) Defendant and the government entered into an oral plea agreement in which the government promised to recommend a maximum sentence of 63 months, and a reduction for acceptance of responsibility. At sentencing, the government failed to honor both promises. When the court determined defendant’s range was 78-90 months, the government said it could not ask for a 63-month sentence because there was no factual or legal basis for departure. It said it had agreed to a 63-month sentence on the assumption that defendant would receive the § 3E1.1 reduction. Defendant challenged the government’s breach of the agreement for the first time on appeal. The Fourth Circuit held that the government’s breach of the oral plea agreement constituted plain error, because such violations directly involve the honor of the government and public confidence in the fair administration of justice. Justice requires and common sense dictates memorializing the terms of the plea agreement. The court suggested that lower courts require all future plea agreements to be in writing. U.S. v. McQueen, 108 F.3d 64 (4th Cir. 1997).
4th Circuit holds failure to debrief defendant breached plea bargain in light of safety valve. (790) Defendant’s plea agreement provided that the government would recommend a sentence at the low end of the guideline range if defendant, upon debriefing by government agents, was completely truthful and forthright regarding the charged offense. The government failed to debrief defendant prior to his sentencing. The Fourth Circuit held that the government breached defendant’s plea agreement by failing to debrief him before sentencing. The government did not satisfy its obligation by recommending the statutory minimum 120-month sentence. Debriefing is a valuable benefit to a defendant who is seeking to qualify for application of the safety valve provision in 18 U.S.C. § 3553(f) and guideline § 5C1.2. Defendant satisfied four of the five requirements for safety valve protection. The district court found that defendant did not satisfy the requirement of truthfully disclosing all of the information and evidence he had to the government. If the provision had been applied to defendant, his guideline range would have been lowered to 108-135 months. U.S. v. Beltran-Ortiz, 91 F.3d 665 (4th Cir. 1996).
4th Circuit says court not required to provide defendant with guideline information before guilty plea. (790) Defendant moved to withdraw her guilty plea, alleging that the district court erred by not providing her with sentencing guideline information prior to her plea. The Fourth Circuit, following U.S. v. Good, 25 F.3d 218 (4th Cir. 1995), found that Rule 11(c)(1) does not require a district court to advise defendant about the applicable guideline range before accepting a guilty plea. The district court properly denied defendant’s motion to withdraw her plea. U.S. v. Puckett, 61 F.3d 1092 (4th Cir. 1995).
4th Circuit finds plea agreement did not require defendant be given opportunity to provide substantial assistance. (790) The government and defendant stipulated that, if requested to do so, defendant would provide the government with information regarding other criminal activity. In return, the government agreed to move for a downward departure if, in its sole discretion, it determined that defendant had provided substantial assistance. Defendant argued that the government breached the plea agreement by refusing to provide him with an opportunity to render substantial assistance and thus earn a downward departure. The Fourth Circuit disagreed, finding the plea agreement clearly granted the government discretion on whether to seek assistance from defendant and whether to move for a departure. Defendant did not allege that the government was motivated by any type of unconstitutional motive in failing to provide him with an opportunity to provide assistance. U.S. v. Lockhart, 58 F.3d 86 (4th Cir. 1995).
4th Circuit says defendant’s bail jumping removed government’s obligation to move for § 5K1.1 departure. (790) Defendant’s plea agreement stated that if he provided substantial assistance, the government would move for a § 5K1.1 departure. Prior to his sentencing hearing, defendant jumped bail and fled to Honduras. He returned home to face sentencing only after learning that the government had instituted proceedings against his parents’ house. At sentencing, the government acknowledged that defendant had provided substantial assistance, but argued that defendant’s bail jumping was a breach of the plea agreement which freed it of the obligation to make a § 5K1.1 motion. The Fourth Circuit agreed. The agreement itself did not address the effect defendant’s absconding would have on the government’s obligation. However, implicit in every plea agreement is the defendant’s obligation to appear for sentencing at the time appointed by the district court. U.S. v. David, 58 F.3d 113 (4th Cir. 1995).
4th Circuit vacates for failure to advise of mandatory minimum sentence. (790) Defendant pled guilty to distributing five grams of crack under 21 U.S.C. § 841(a)(1). The Fourth Circuit vacated because the district court failed to inform him during his plea colloquy of the five-year mandatory minimum sentence. The Rule 11 violation was not harmless error since defendant had no knowledge of the mandatory minimum at the time of his plea. Neither the plea agreement nor the indictment mentioned the five-year sentence. No one mentioned the mandatory minimum at the plea hearing. The record suggested that defense counsel was unaware of the statutory minimum. Although the PSR did mention the mandatory minimum, it was not prepared until at least two months after the plea had been accepted. Violations of Rule 11 cannot be cured by the presentence report. The possibility of the mandatory minimum was not too speculative for the district court, since defendant pled guilty to distributing five grams of cocaine. U.S. v. Goins, 51 F.3d 400 (4th Cir. 1995).
4th Circuit finds government breached agreement to recommend sentence at bottom of range. (790) The 4th Circuit held that the government breached its promise in the plea agreement to recommend a sentence at the bottom of the guideline range. The district court’s misunderstanding of the plea agreement’s terms did not excuse the government’s failure to fulfill its bargain. Defendant’s allegedly perjured testimony at the sentencing hearing also did not relieve the government of its obligation under the plea agreement. Defendant testified that all the cocaine he distributed for the conspiracy was in powder form, while other witnesses stated that defendant was involved with crack. The plea agreement expressly reserved defendant’s right to argue that he should only be held accountable for powder cocaine. The government’s claim that defendant’s testimony at sentencing constituted changed circumstances was both “manifestly unfair” and a clear violation of the plea agreement. U.S. v. Peglera, 33 F.3d 412 (4th Cir. 1994).
4th Circuit says failure to move for downward departure did not breach plea agreement. (790) Defendant argued that the government’s failure to move for a substantial assistance departure violated his plea agreement. The 4th Circuit rejected this argument, since the plea agreement did not impose an obligation on the government to make such a motion. The agreement provided only that the government reserved its option to seek a departure if in its “sole discretion” it determined that defendant had provided substantial assistance. U.S. v. Wallace, 32 F.3d 1171 (7th Cir. 1994).
4th Circuit finds court advised defendant that sentencing range was an estimate. (790) Defendant argued that the district court led him to expect a six-year sentence, but he received an 80-month sentence. The 4th Circuit found no error, since the district court had advised defendant that the 63-78 month sentencing range discussed at his plea colloquy was an estimate. Rule 11(c) does not require a district court to advise a defendant about the applicable guideline range before accepting a guilty plea. U.S. v. Good, 25 F.3d 218 (4th Cir. 1994).
4th Circuit finds government breached plea agreement by failing to move for substantial assistance departure. (790) Defendant’s plea agreement provided that if defendant cooperated with regard to pending investigations, and that cooperation was deemed by the government as providing substantial assistance, the government would move for a downward departure pursuant to §5K1.1. At sentencing, the government admitted that defendant’s assistance in the investigation of crimes was “substantial,” but refused to move for a departure until after he testified at two trials. The 4th Circuit ruled that defendant was entitled to specific performance of the government’s promise to move for a substantial assistance departure. The government had no right to insist on assistance in both investigation and prosecution. The plea agreement stated that the government would make the motion if it deemed defendant’s assistance substantial in the investigation “or” prosecution of another person. U.S. v. Dixon, 998 F.2d 228 (4th Cir. 1993).
4th Circuit rejects plea withdrawal even though court applied harsher guideline than expected. (790) The probation officer, defendant, and the government expected that defendant would be sentenced under section 2B1.3, with a range of zero to six months. After defendant’s plea, the district court decided to apply guideline section 2B3.2, with a range of 27 to 33 months. The 4th Circuit upheld the district court’s refusal to permit defendant to withdraw his guilty plea. Refusal to allow plea withdrawal is not an abuse of discretion, where the defendant has been expressly informed of the maximum statutory sentence possible, that his actual sentence depends on the guidelines, and that counsel’s sentencing estimates were not binding on the court, provided counsel’s erroneous advice did not constitute ineffective assistance. U.S. v. Lambert, 994 F.2d 1088 (4th Cir. 1993).
4th Circuit rejects ineffective assistance of counsel as grounds for plea withdrawal. (790) The 7th Circuit upheld the denial of defendant’s motion to withdraw his guilty plea, rejecting his claim that he received ineffective assistance of counsel before pleading guilty. It order for ineffectiveness to constitute a fair and just reason for withdrawal, it must appear that but for the ineffectiveness, defendant would not have pled guilty. It defied common sense to believe that defendant would not have pled guilty had he known that as a technical matter he could not be prosecuted for one of his offenses on the government’s information unless he waived indictment. Any incorrect advice defendant received on his sentencing possibilities was not the “but-for” cause of the guilty plea. He ultimately entered his plea based on the sentencing court’s advice, not counsel’s, that he could receive up to 20 years’ imprisonment. Finally, the court rejected defendant’s claim that he was coerced by counsel into pleading guilty. U.S. v. Craig, 985 F.2d 175 (4th Cir. 1993).
4th Circuit rejects need for second Rule 11 colloquy at sentencing. (790) After pleading guilty, defendant wrote a letter to the district court in which he complained that government had promised that his sentence would be reduced if he helped “bust some people.” At sentencing, the district court reminded defendant that it was not under any obligation to give him a reduced sentence because of any promise that was made, and reaffirmed that defendant still wanted to plead guilty. The 4th Circuit rejected defendant’s claim that the district court should have held a second Rule 11 colloquy at his sentencing hearing. Defendant’s intervening equivocation did not invalidate his original responses. At most, it cast doubt on whether he truly understood that the district court had no obligation to reduce his final sentence on account of his plea. At sentencing, the district court responded appropriately to this doubt by reminding defendant that it had no such obligation and reaffirming that he wanted to plead guilty. Far from abusing its discretion, the district court took “exemplary steps” to reaffirm the voluntariness of defendant’s plea. U.S. v. Taylor, 984 F.2d 618 (4th Cir. 1993).
4th Circuit holds that enhancement based presentence interview violated plea agreement. (790) Defendant, a former state representative, accepted a bribe from an undercover informant in return for his support of a bill. Before indictment, defendant filed a campaign disclosure form reporting the bribe as a campaign contribution. His plea agreement provided that information provided in cooperating would not be used against him. Nevertheless, his sentence was enhanced for obstruction of justice based on his admission to probation officers that he filed the campaign disclosure form because a co-conspirator advised him that he might be under investigation. The 4th Circuit held that use of that statement as support for the enhancement violated the plea agreement and guideline section 1B1.8 and was plain error. Application note 5 to section 1B1.8, effective November 1991, clarifies that section 1B1.8’s protection includes information provided to a probation officer. U.S. v. Fant, 974 F.2d 559 (4th Cir. 1992).
4th Circuit, en banc, finds no error in failure to advise defendant he could not withdraw plea. (790) Defendant argued that his sentence should be vacated because at his Rule 11 plea hearing, the judge failed, pursuant to Fed. R. Crim. P. 11(e)(2) to advise him that once he pled guilty he could not withdraw his plea. The 4th Circuit found no error, since Rule 11(e)(2) was not applicable to defendant. Rule 11(e)(2) provides that if the plea agreement requires the government to make a sentencing recommendation or not to oppose a request by the defendant, the court must advise the defendant that he has no right to withdraw his plea even if the court does not accept the recommendation or request. Since there was no agreement by the government in this case, Rule 11(e)(2) did not apply and the court was not required to advise defendant that once he pled guilty he could not withdraw the plea. U.S. v. Lambey, 974 F.2d 1389 (4th Cir. 1992) (en banc).
4th Circuit, en banc, refuses to permit withdrawal of plea even though defense counsel underestimated guideline range. (790) Defense counsel advised defendant that although he could not predict defendant’s guideline range, he “felt” that it would be 78 to 108 months. Defendant received a 360-month sentence. The 4th Circuit found no abuse of discretion in the district court’s denial of defendant’s motion to withdraw his guilty plea. At defendant’s plea hearing, the court advised defendant that he faced a maximum life sentence. Defendant testified that he was aware that any predictions as to his sentence were not binding on the court. The court did not rule out the possibility that erroneous advice to a defendant might constitute grounds for withdrawing a guilty plea where the information given by the court conflicts with the earlier information given by the defendant’s attorney. U.S. v. Lambey, 974 F.2d 1389 (4th Cir. 1992) (en banc).
4th Circuit denies rehearing en banc in case holding that defendant’s waiver of appeal barred government appeal. (790) In U.S. v. Guevara, 941 F.2d 1299 (4th Cir. 1991), the 4th Circuit held that a defendant’s explicit waiver of appeal in a plea agreement must be construed as an implicit waiver of the government’s right to appeal. Judge Wilkins, joined by Judges Wilkinson, Niemeyer and Luttig, dissented from the denial of the petition for rehearing en banc. Judge Wilkins felt that in the absence of an express waiver, the right to appeal should be recognized and respected. The record contained no evidence that the defendant entered the plea agreement involuntarily or without full knowledge and understanding of its provisions. Moreover, there was no indication that the government intended to waive its statutory right to appeal. Defendant did not even raise this issue on appeal. U.S. v. Guevara, 949 F.2d 706 (4th Cir. 1991) (Wilkins, J., dissenting from the denial of rehearing en banc).
4th Circuit affirms denial of evidentiary hearing on defendant’s motion to withdraw his guilty plea. (790) The 4th Circuit found no error in the district court’s denial of defendant’s request for an evidentiary hearing on his motion to withdraw his guilty plea. None of the factors typically considered in determining whether a defendant has met his burden under Fed. R. Crim. P. 32(d) were met. Defendant, a lawyer and former governor, was not convincing in claiming that his plea was not knowing and voluntary. Defendant never made credible assertions of his innocence, and there was a long delay between the time of his plea and time he moved to withdraw the plea. The fact that the government agreed, on the morning that defendant entered his plea, to proffer its factual basis in a more limited version than it originally intended did not affect the voluntariness of the plea or the existing plea agreement. U.S. v. Moore, 931 F.2d 248 (4th Cir. 1991).
4th Circuit finds no breach of plea agreement in government’s failure to move for substantial assistance departure. (790) The 4th Circuit rejected the government’s contention that the mere fact that the government failed to move for the departure meant that the court lacked authority to depart on substantial assistance grounds. Since the plea agreement contained a contingent promise by the government to move for a downward departure, it was proper for the district court to determine whether the defendant satisfied his contractual obligations. In this case, defendant did not. An FBI agent testified that defendant was less than forthright in detailing his participation in the drug conspiracy, and that other officers involved believed as he did. The agent also testified that defendant refused to identify the person to whom defendant delivered 40 pounds of marijuana, and refused to acknowledge that certain lists found at his house were lists of drug buyers. U.S. v. Conner, 930 F.2d 1073 (4th Cir. 1991).
4th Circuit holds that defense counsel’s failure to advise of possible future prosecution did not render plea involuntary. (790) Three months after defendant pled guilty to a drug charge, he attempted to withdraw his plea. He claimed that he learned only after he had pled guilty that the government planned to bring a continuing criminal enterprise (CCE) charge against him, and that his guilty plea could be used as a predicate offense of a CCE charge. The 4th Circuit rejected defendant’s argument that defense counsel’s failure to advise him of a “speculative CCE prosecution” rendered the plea involuntary. A CCE prosecution requires the government to prove many additional elements and does not automatically result from a guilty plea to a narcotics offense. Moreover, in light of the overwhelming evidence against defendant, the court could not conclude that there was any reasonable possibility that had defendant been advised of the potential CCE prosecution, he would have refused to plead guilty and gone to trial. U.S. v. McHan, 920 F.2d 244 (4th Cir. 1990).
4th Circuit holds that failure to withdraw plea constituted waiver of claim that government’s sentencing recommendation violated terms of plea agreement. (790) As part of the plea agreement with a drug conspirator, the government agreed to recommend a two point offense level reduction for “substantial assistance” and that the defendant should receive a sentence near the low end of the applicable range. At the sentencing hearing, the judge granted a three level reduction for substantial assistance, but did not sentence him at the low end of the guidelines. The defendant appealed, claiming the sentence violated the plea agreement. The 4th Circuit affirmed. Even though it found the agreement ambiguous and poorly worded, it held that the defendant’s failure to withdraw the plea, as the district court advised him he could do, constituted a wavier of the issue for purposes of appeal. Furthermore, the sentence imposed was within the lower end of the guideline range which would have been imposed had the substantial assistance departure been two points, as urged by the government, even though it fell within the higher end of the actual range which was fixed. U.S. v. Sheffer, 896 F.2d 842 (4th Cir. 1990).
5th Circuit finds any breach of plea agreement harmless because acceptance reduction was unlikely. (790) Defendant’s plea agreement provided that the government would recommend an acceptance of responsibility reduction if he “clearly demonstrates acceptance of responsibility.” The government did not recommend the two-level decrease; instead, it sought an obstruction of justice increase based on a letter defendant sent to the district court denying various facets of the government’s case. He later admitted that these statements were false. In addition, while defendant was detained, he phoned his sister, a co-defendant, and instructed her “not to [waver] from” a storyline defendant had concocted. Defendant argued that both instances occurred before he pled guilty, and the government was aware of these incidents when it agreed to recommend the acceptance reduction. The Fifth Circuit held that even if the government breached the agreement, defendant’s substantial rights were not affected, because it was highly unlikely the district court would have granted defendant the acceptance reduction. Based on the letter and his instructions to his sister, the court found defendant’s credibility so lacking that it was “suspicious of any word out of his mouth.” U.S. v. Hinojosa, 749 F.3d 407 (5th Cir. 2014).
5th Circuit says plea agreement did not bar government from advocating for relevant conduct. (790) Defendant pled guilty to possession with intent to distribute 211 kilograms of marijuana. However, the district court found him responsible for 2,648.8 additional kilograms of marijuana as relevant conduct. He argued for the first time on appeal that the government breached his plea agreement by advocating for the inclusion of the additional marijuana. The language of the plea agreement did not contain a reference to drug quantity or a promise by the government not to advocate for the inclusion of relevant conduct. Nonetheless, defendant argued that a breach occurred because he agreed to plead guilty to possessing 211 kilograms of marijuana, and no more. The Fifth Circuit found no breach. Defendant’s “reasonable understanding of the plea agreement” did not include a term prohibiting the government from advocating for the inclusion of relevant conduct. U.S. v. Hinojosa, __ F.3d __ (5th Cir. May 20, 2014) No. 13-40351.
5th Circuit upholds government’s refusal to move for substantial assistance departure. (790) Pursuant to a plea agreement, defendant pled guilty to methamphetamine charges, and was sentenced to a mandatory minimum sentence of 120 months under 21 U.S.C. § 841(b)(1)(A)(viii). He argued that the government breached the plea agreement by failing to file a § 5K1.1 motion for a substantial assistance departure. The plea agreement expressly provided that the government retained the discretion to decide whether to file the motion. Nonetheless, defendant contended that the plea agreement was in large part induced by the discussions between the government and defense counsel regarding the possibility of moving for a downward departure. The Fifth Circuit held that the government did not breach the plea agreement by failing to move for the § 5K1.1 departure. Counsel’s only discussion of downward departure at the plea hearing involved the safety valve guideline. U.S. v. Barnes, 730 F.3d 456 (5th Cir. 2013).
5th Circuit holds that government did not breach plea agreement based on promise in email during plea negotiations. (790) Defendant argued that the government agreed in an email exchange that it would not seek a leader/organizer sentencing enhancement pursuant to U.S.S.G. § 3B1.1(a), and that it breached his plea agreement by supporting the enhancement, which was recommended in the PSR. His plea agreement made no mention of the leader/organizer enhancement. Defendant contended that the email exchange was part of the plea agreement because it reasonably induced him to plead guilty. The Fifth Circuit disagreed, finding the record demonstrated that defendant did not rely on the email exchange in pleading guilty. The district court specifically asked defendant whether there were any extrinsic agreements not included in the plea agreement that persuaded him to plead guilty, and defendant said no. This was the very argument that defendant asserted in support of his appeal. U.S. v. Mason, 722 F.3d 691 (5th Cir. 2013).
5th Circuit holds that breach of plea agreement did not affect defendant’s substantial rights. (790) Defendant, the mayor of a town in Louisiana, pled guilty to fraud charges in connection with his town’s receipt of major disaster benefits. He argued for the first time on appeal that the government breached the plea agreement when it advocated for a loss of $320,000, in contravention of the plea agreement’s terms of a loss of less than $200,000. The Fifth Circuit found it evident that the government breached the agreement, but ruled that the breach did not affect defendant’s substantial rights, because it likely did not influence the sentence. The district court had extensive briefing on the loss issue, had read the thorough PSR that recommended a loss calculation of over $320,000, and had the benefit of lengthy oral argument and expert witness testimony. It ultimately adopted an amended version of the PSR, including its loss calculation. The court based its sentencing decision on the facts presented in the PSR, the sentencing guidelines and commentary, and the fact that defendant had not proffered an alternative method of calculation. There was no indication that the government’s specific arguments in favor of the higher loss calculation affected the sentence. U.S. v. Hebron, 684 F.3d 554 (5th Cir. 2012).
5th Circuit finds probation office’s recommendation did not breach plea agreement. (790) Defendant pled guilty to drug charges pursuant to a written, non-binding plea agreement. The plea agreement provided that defendant’s offense level would be 26. Nevertheless, the PSR prepared by the Probation Office recommended a career offender offense level of 34, based on defendant’s prior drug convictions. The Fifth Circuit held that the probation officer’s recommendation did not breach the plea agreement because the U.S. Probation Office is a separate entity under the judiciary, unlike the U.S. Attorney’s Office, which is organized under the executive branch. The plea agreement signed by the U.S. Attorney’s Office was not binding on either the Probation Office or on the district court. Defendant was informed, both in the plea agreement itself and during his plea colloquy, that the court, and therefore by extension the Probation Office, was not bound by the plea agreement. U.S. v. Loza-Gracia, 670 F.3d 639 (5th Cir. 2012).
5th Circuit holds that government did not breach plea agreement. (790) The government stipulated in defendant’s plea agreement to a sentencing range of 151-188 months. However, the PSR suggested an upward departure and a sentencing variance. Defendant filed a sentencing memo disagreeing with the PSR, and attempted to distinguish his offense from other Ponzi schemes. In response, the government stated that it stood by the plea agreement. However, it also argued that defendant’s objections to the PSR should be overruled. Defendant argued that the government breached the plea agreement by implicitly arguing for an upward departure in its response to his sentencing memo. The Fifth Circuit held that the government did not breach the plea agreement. The government agreed only to make a non-binding recommendation of a 151-188-month sentencing range. The government repeatedly stood by the agreement’s calculation of this sentencing range, and never requested an upward variance or non-guidelines sentence. The government’s response to defendant’s sentencing memo was not a breach of the plea agreement, but a response to a direct court order, and the prosecutor had a duty as an officer of the court to inform the court of all factual information relevant to the defendant’s sentence. Although the government’s response included negative descriptions of defendant, the government had a duty to correct what it believed to be defendant’s attempt to mislead the court. U.S. v. Pizzolato, 655 F.3d 403 (5th Cir. 2011).
5th Circuit finds government’s breach of plea agreement warranted resentencing before different judge. (790) Pursuant to a plea agreement, defendant was debriefed by the government and gave immunized statements about his drug conspiracy. The PSR assigned defendant a guideline range based on 18 kilograms of cocaine base. Defendant objected, asserting it was not based on reliable evidence independent of his immunized statements. To support the calculation, the government told both the district court and the probation officer that defendant had admitted dealing 18 kilograms during the immunized debriefing. It further noted that the DEA agents who debriefed defendant would testify that defendant himself admitted the quantities involved in his drug trafficking. It argued that defendant should not be permitted to “perpetrate a fraud upon the Court by denying what he himself admitted.” The Fifth Circuit held that the government’s use of defendant’s immunized statements breached the plea agreement, and remanded the case to a different judge. The government’s direct and repeated use of defendant’s immunized statements to advocate a higher guideline sentencing range was not consistent with any reasonable understanding of defendant’s use immunity agreement. Defendant was not perpetrating a fraud upon the court – he simply objected to the sufficiency, reliability, and independence of the evidence presented in the PSR. U.S. v. Harper, 643 F.3d 135 (5th Cir. 2011).
5th Circuit says prosecution breached plea agreement by supporting career offender sentence. (790) Defendant pled guilty to drug charges pursuant to a plea agreement which stipulated that his base offense level was 30. The parties acknowledged in the agreement that the court was “not bound by these agreements [and] that other specific offense characteristic or guideline adjustments may increase or decrease the appropriate range.” The PSR recommended an increase in offense level to 37 based on defendant’s status as a career offender. The Fifth Circuit held that the prosecution breached the plea agreement at sentencing by supporting the career offender sentence. First, the career offender increase is not a “guideline adjustment” to a base offense level, but replaces the base offense level under certain conditions. Second, it was not unreasonable for defendant to believe the plea agreement precluded the government from supporting the application of the career offender guideline. Although the agreement permitted the government to argue for “offense characteristics or guideline adjustments,” it did not contemplate that the government would argue for a new base offense level different from the one stipulated in the plea agreement. U.S. v. Roberts, 624 F.3d 241 (5th Cir. 2010).
5th Circuit applies plain error to forfeited contention that government breached plea agreement. (790) Defendant argued, for the first time on appeal, that the government breached his plea agreement at sentencing by opposing a reduction for acceptance of responsibility. The government conceded that it breached the agreement, but contended that reversal was appropriate only if defendant could show prejudice. Clarifying some conflict in its precedent, the Fifth Circuit held that under U.S. v. Calverley, 37 F.3d 160 (5th Cir. 1994), a breach of a plea agreement can constitute plain error, but in order to warrant reversal, defendant must establish the elements of plain error and show prejudice. Defendant did not carry his burden of showing prejudice. It was clear that the district court denied defendant an acceptance reduction because he committed another crime while in custody. When defendant requested the reduction, the court made it clear that it was “so rare to be unknown” that defendant with subsequent criminal activity would receive such a reduction. Defendant made no showing that, absent the government’s recommendation, the court would have disregarded his criminal conduct and granted the acceptance reduction. U.S. v. Puckett, 505 F.3d 377 (5th Cir. 2007).
5th Circuit says “statutory maximum” in plea agreement was not changed by Booker. (790) Defendant pled guilty under a plea agreement that included an appeal waiver provision. However, he argued that he still had the right to appeal under a provision of the agreement that authorized appeal of sentences exceeding the “statutory maximum.” He claimed that that U.S. v. Booker, 543 U.S. 220 (2005) changed the definition of “statutory maximum” to the maximum term of incarceration that is authorized by facts admitted to by the defendant or found by a jury beyond a reasonable doubt. The Fifth Circuit held that Booker did not change the plea agreement’s meaning of the term “statutory maximum.” There was no indication that the parties meant for the term “statutory maximum” to be accorded the non-natural definition it assumed in Blakely and Booker. U.S. v. Bond, 414 F.3d 542 (5th Cir. 2005).
5th Circuit holds that government breached plea agreement by supporting enhancement not discussed in it. (790) Defendant signed a plea agreement which contained a detailed calculation of defendant’s sentencing range. The PSR, however, calculated defendant’s sentence differently, including a recommended enhancement for abuse of trust. The plea agreement did not include this enhancement. At sentencing, the prosecution acknowledged that the enhancement was not included in the agreement, but stated that it was free to take a position on the enhancement. The Fifth Circuit held that the government breached the plea agreement because it stipulated in the agreement to a guideline calculation that did not include the abuse of trust enhancement. The agreement states that the government and defendant “agree that the applicable Sentencing Guidelines should be calculated as follows.” By not including an enhancement for an abuse of trust, the parties agreed that it was not an applicable guideline and that it should not be included in the sentence calculation. Urging an enhancement that was not part of the agreement constituted a breach. U.S. v. Munoz, 408 F.3d 222 (5th Cir. 2005).
5th Circuit holds that defendant waived right to appeal. (790) Defendant appealed his sentence in light of U.S. v. Booker, 543 U.S. 220 (2005). However, defendant’s plea agreement contained a provision waiving his right to appeal unless the district court departed upward from the applicable guideline range. Defendant argued that an upward departure was in fact assessed because Booker dictates that a guidelines calculation may be made based only on facts admitted by the defendant or found by a jury beyond a reasonable doubt. The Fifth Circuit disagreed. Booker did not change the definition of a “guidelines range.” It only struck down the mandatory application of the guidelines ranges that are based on facts not found by a jury beyond a reasonable doubt or admitted by the defendant. Because defendant received a sentence that was below his guideline range, he waived his right to appeal. U.S. v. McKinney, 406 F.3d 744 (5th Cir. 2005).
5th Circuit says failure to advise that defendant was subject to mandatory restitution was harmless error. (790) Rule 11 requires a district court during the plea colloquy to inform the defendant about any mandatory minimum penalty and about the court’s authority to order restitution. Although defendant’s plea agreement and PSR both discussed restitution, the district court made no mention of the restitution during the plea colloquy. In U.S. v. Glinsey, 209 F.3d 386 (5th Cir. 2000), the court held that a defendant’s substantial rights are not infringed when the district court, contrary to Rule 11, fails to inform him of the court’s authority to order restitution as a penalty where the court did inform him of the maximum possible fine. Defendant contended that Glinsey was distinguishable because the restitution there was discretionary, not mandatory. However, Glinsey seemed to base its decision on the amount of financial exposure of which the defendant had notice, so the proper course to avoid infringing substantial rights is to set liability no higher than the defendant’s level of notice. Here, the court warned defendant that she faced fines up to $500,000, while the restitution was over $300,000 lower than the total possible fines. Therefore, the Fifth Circuit ruled that the court’s Rule 11 error was not harmful. U.S. v. Powell, 354 F.3d 362 (5th Cir. 2003).
5th Circuit finds no ineffective assistance where defendant not eligible for safety valve protection. (790) Defendant filed a petition under 28 U.S.C. § 2255, claiming that his attorney was deficient by failing to inform defendant about the 10-year mandatory minimum for his crime. He argued that, prior to trial, his attorney assured him that he would receive at most four to five years in prison, and that if his attorney had properly advised him, he would have pled guilty instead of standing trial. The Fifth Circuit found no ineffective assistance, because defendant could not demonstrate that he was prejudiced by his counsel’s allegedly deficient performance. The prosecutor made clear that she would only have permitted defendant to plead to the indictment. As a result, even if he had pled guilty, defendant would still have faced the ten-year mandatory minimum sentence. Defendant could only demonstrate prejudice if he could prove that the sentencing court could and would have departed below the statutory minimum sentence. However, defendant was not eligible for safety valve protection under U.S.S.G. § 5C1.2. The district court found in light of defendant’s alleged memory problems, he lacked credibility, and thus could not have satisfied the requirement in § 5C1.2 that he testify “truthfully.” U.S. v. Ridgeway, 321 F.3d 512 (5th Cir. 2003), abrogation on other grounds recognized by U.S. v. Grammas, 376 F.3d 433 (5th Cir. 2004).
5th Circuit finds government violated plea agreement by offering information obtained during debriefing. (790) Police arrested defendant as he and two others were unloading a truckload of marijuana. He pled guilty to drug conspiracy charges pursuant to a plea agreement and agreed to cooperate with the government. At sentencing, the court attempted to determine defendant’s role in the offense by determining who was going to pay for the marijuana. The government provided the court with information that defendant had told court during the debriefing. The court relied on that information to find that defendant held an aggravating role in the offense. The Fifth Circuit held that the government violated the plea agreement by offering information it obtained solely during the debriefing. 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 was irrelevant. The government did not use the information in order to clear up a misunderstanding and then inform the court that such information could not be used against defendant. Rather, the government use the information to argue that defendant held a leadership role in the offense. U.S. v. Gonzalez, 309 F.3d 882 (5th Cir. 2002).
5th Circuit holds that waiver of appeal was void. (790) As part of defendant’s plea agreement, (1) defendant agreed to waive his right to appeal his sentence, (2) the government agreed not to contest defendant’s receipt of an acceptance of responsibility reduction, and (3) if defendant failed to provide full cooperation, or committed any federal, state, or local crime between the date of the agreement and sentencing, the agreement could be voided by the government. The PSR recommended no acceptance reduction because defendant had tested positive for drugs on multiple occasions while out on bond. Notwithstanding the plea agreement, the government supported this recommendation, noting that defendant’s continued drug use violated his promise in the plea agreement not to commit any further crimes. Defendant appealed, and claimed that his waiver of appeal was no longer effective because when the government contested his receipt of an acceptance reduction, the government breached the agreement or elected to void it, thereby releasing both the government and defendant from the agreement. The Fifth Circuit agreed. Whether the government’s conduct was viewed as the initial breach of the plea agreement or the exercise of its prerogative to void the plea agreement when defendant breached it first, the result was the same: the agreement, including the restriction on defendant’s right to appeal, was void. U.S. v. Keresztury, 293 F.3d 750 (5th Cir. 2002).
5th Circuit says government did not breach agreement where PSR included government’s stipulated range. (790) The government stipulated that a guideline range of 87-108 months’ imprisonment would sufficiently penalize defendant’s conduct. The district court found that the actual guideline range was 70-87 months’ imprisonment, but departed upward, resulting in a total sentence of 240 months’. Defendant argued that the government breached his plea agreement by failing to recommend that he be sentenced within the guideline range of 70-87 months. The Fifth Circuit found this argument foreclosed by U.S. v. Reeves, 255 F.3d 208 (5th Cir. 2001), which held that the government did not breach a plea agreement by remaining silent at the sentencing hearing when its recommendation had been incorporated into the PSR. As in Reeves, defendant’s PSR included the government’s stipulated range. Furthermore, the agreement clearly stated that that the sentence would be imposed by the court, not the government. U.S. v. Davenport, 286 F.3d 217 (5th Cir. 2002).
5th Circuit says defendant could not establish prosecutorial vindictiveness where he breached agreement. (790) Pursuant to a plea agreement, defendant pled guilty to one count of distributing 26.2 grams of cocaine base and promised to provide complete information to the government about his criminal activities. The district court later permitted the government to revoke the agreement based on defendant’s failure to cooperate. Defendant was then convicted after a trial of additional charges. He argued that the government violated his due process rights by vindictively increasing the drug quantity after he exercised his right to trial. The Fifth Circuit found no prosecutorial vindictiveness. Initially, the government held defendant accountable for less drugs as a dispensation for a guilty plea. A reasonable defendant would understand that his breach of the plea agreement would motivate the government to revoke its decision to hold him accountable for the lesser amount of drugs. The facts of the case simply did not indicate that the government was punishing defendant for going to trial. U.S. v. Wells, 262 F.3d 455 (5th Cir. 2001).
5th Circuit holds that waiver of appeal was knowing and voluntary. (790) Defendant contended that he did not knowingly and voluntarily waive his right to appeal his sentence, rendering the waiver unenforceable. The Fifth Circuit disagreed. Although counsel objected to the waiver during the plea colloquy, at no time did counsel object to the waiver on the basis that it waived defendant’s right to appeal the district court’s determination of the applicable guideline range. Although at sentencing, the district court erroneously advised defendant that he had the right to appeal his sentence, any confusion at that time had no effect on the validity of the waiver. The record showed that defendant’s waiver of appeal was informed and voluntary. U.S. v. Gonzalez, 259 F.3d 355 (5th Cir. 2001), this portion of opinion reinstated on rehearing en banc, U.S. v. Longoria, 298 F.3d 367 (5th Cir. 2002).
5th Circuit rules government did not breach agreement by not orally recommending 72-month sentence. (790) Defendant’s plea agreement stated that “the government recommends that the defendant be sentenced to a term of imprisonment of 72 months.” The district court imposed an enhancement over the objection of both defendant and the government, resulting in a guideline range of 87-108 months. Defendant argued that the government breached the agreement by failing orally to recommend a 72-month sentence at the hearing. The Fifth Circuit found this argument had no merit. The plea agreement’s statement that the government recommended a 72-month sentence promised nothing. Instead, it anticipated that the plea agreement would be incorporated into the PSR, which it was, and thus that the recommendation would be self-executing, which it also was. The government’s statement at sentencing about the seriousness of defendant’s offense did not violate an implicit promise in the plea agreement not to recommend any sentence greater than 72 months. Defense counsel made a statement that “created a palpable danger that the court would misperceive the relevant facts.” In response, the government accurately restated the relevant facts, then merely asked the court to consider those facts, while remarking that “it is the Court’s call here.” U.S. v. Reeves, 255 F.3d 208 (5th Cir. 2001).
5th Circuit holds that agreement did not allow defendant to withdraw plea if rejected by court. (790) In defendant’s plea agreement, both parties “stipulated” under Fed. R. Crim. P. 11(e)(1)(B) that USSG § 2G1.1 applied to the offense. At his rearraignment hearing, defendant acknowledged to the court that he understood that the terms of the plea agreement were “merely a recommendation,” and that he would not be allowed to withdraw his guilty plea if the court rejected the recommendation. At sentencing, after reminding the parties that it was not bound by the plea agreement, the court stated that it could not accept the “recommendation” to apply § 2G1.1, and instead sentenced defendant under § 2A3.1. Defendant’s attorney neither objected to defendant being sentenced after the court rejected the recommendation, nor did he request that defendant be permitted to withdraw his guilty plea. The Fifth Circuit held that the court was not required by Rule 11(e)(4) to give defendant the opportunity to withdraw his guilty plea after the court rejected the plea agreement. The record clearly revealed that the parties’ stipulation was not a Rule 11(e)(1)(C) agreement, but one pursuant to Rule 11(e)(1)(B). The agreement unambiguously cited Rule 11(e)(1)(B) and stated that defendant would not be allowed to withdraw his guilty plea if the court chose a higher guideline range than expected. Moreover, defendant affirmed his understanding of this at the rearraignment hearing. U.S. v. Rhodes, 253 F.3d 800 (5th Cir. 2001).
5th Circuit finds numerous Rule 11 errors harmless. (790) Defendant complained that the district court committed numerous Rule 11 errors by failing to explain, among other things, (1) the maximum penalty, including the effect of a supervised release term, (2) that it was required to consider the sentencing guidelines but was able to depart from those guidelines, and (3) that he waived, under the plea agreement, the right to appeal his sentence. The Fifth Circuit found all the errors harmless. As to advice about the maximum penalty, defendant admitted that the prosecutor, at the court’s request, summarized the plea agreement and described the maximum imprisonment, fine and supervised release period. The court failed to address the defendant personally and did not explain the effect of supervised release, but these errors were harmless. Defendant’s actual sentence of imprisonment and supervised release was less than the maximum term of incarceration that he understood he faced. The court’s failure to advise defendant about the guidelines was harmless because defendant’s plea agreement contained a full explanation of the guidelines. Although Rule 11, as amended December 1999, now provides that the court must determine that the defendant understands any waiver of appeal provision in the plea agreement, this provision was not applicable to defendant’s plea hearing, which took place in May 1999. Finally, numerous Rule 11 errors did not transform otherwise harmless errors into reversible error–every alleged Rule 11 violation must be tested separately. U.S. v. Cuevas-Andrade, 232 F.3d 440 (5th Cir. 2000).
5th Circuit will not correct plain error where defendant did not follow procedure in plea agreement. (790) Defendant’s plea agreement provided that the government would not recommend “a particular term of imprisonment or fine, but reserve[d] the right to recommend that the sentence include restitution and some form of imprisonment.” At sentencing, defendant counsel urged the court not to impose a fine, on the basis of defendant’s financial circumstances. The government then stated that, given the offense, the $3000 fine recommended in the PSR was “fair,” and encouraged the judge to impose this fine. Defendant argued that these comments breached the plea agreement, and sought specific performance. Assuming without deciding that the government’s statement breached the agreement and constituted plain error, the Fifth Circuit found no relief warranted since the error did not seriously affect the fairness, integrity, or public reputation of the judicial system. The plea agreement contained a section setting out specific procedures for determining whether the plea agreement had been breached. The agreement required that the party claiming the breach to provide written notice to the other party to give that party a reasonable opportunity to explain or cure the breach. Defendant did not object to the prosecutor’s comments, nor did he comply with the plea agreement’s reasonable procedures for determining whether the agreement had been breached. The panel also rejected defendant’s challenge to the court’s imposition of a fine, ruling that he waived his right to appeal his sentence as part of his plea agreement. U.S. v. Branam, 231 F.3d 931 (5th Cir. 2000).
5th Circuit reduces restitution to maximum fine amount included in court’s warning. (790) Defendant challenged a $1,266,317.06 restitution order, since neither the plea agreement nor the rearraignment colloquy mentioned the possibility of restitution, although he was told he could face a fine of up to $1 million. The Fifth Circuit agreed that the district court violated Rule 11 by not informing defendant of the possibility of paying restitution at the rearraignment colloquy. However, to be entitled to relief, defendant must also show that this variance affected his substantial rights. Given that defendant was warned that he could face a $1 million fine, the question was whether knowing about the $266,000 difference would have affected his willingness to plead guilty. However, even if it did, defendant was not prejudiced so long as his liability did not exceed the maximum amount that the court informed him could be imposed as a fine. Following the First Circuit’s approach in U.S. v. Padin-Torres, 988 F.3d 280 (1st Cir. 1993), the Fifth Circuit reduced the restitution order to $1 million, the maximum fine amount that defendant was warned about at his plea hearing. Having to pay restitution of $1 million, instead of a fine of $1 million, would not have affected defendant’s willingness to plead guilty so long as his total liability did not exceed the maximum fine that could have been imposed. U.S. v. Glinsey, 209 F.3d 386 (5th Cir. 2000).
5th Circuit holds that government breached agreement by advocating consecutive sentences. (790) Defendant’s plea agreement provided that the government would not oppose a sentence running concurrent with defendant’s undischarged prison term. At sentencing, the government was represented by a prosecutor who was not involved in negotiating defendant’s plea agreement. After defense counsel urged concurrent sentences, the prosecutor acknowledged its obligation under the plea agreement, but noted that the previous AUSA “didn’t have the benefit of the information that we now have about the Defendant’s behavior while he’s been incarcerated…” The prosecutor pointed out that defendant had threatened to kill another inmate and that charges had been brought against him for assaulting a prison guard. The prosecutor then suggested that the court “send a message” to inmates about how they should treat the guards. The Fifth Circuit held that the government breached the plea agreement by advocating consecutive sentences. The plea agreement made it clear that part of the consideration for defendant’s guilty plea was the government’s promise not to oppose concurrent sentences. The prosecutor’s comments, made in direct response to the defense’s request for concurrent sentences, were not an argument for a sentence at the high end of the guideline range. The government was not simply advising the court of additional sentencing information since most, if not all, of the information had previously been disclosed to the court. U.S. v. Saling, 205 F.3d 764 (5th Cir. 2000).
5th Circuit holds that prosecutor’s silence did not breach plea agreement. (790) Defendant argued that the prosecutor breached his plea agreement by failing to recommend a three-level acceptance of responsibility reduction. In fact, the government recommended the reduction, but after the district court ruled that defendant had obstructed justice, the government was silent. The Fifth Circuit ruled that the prosecutor’s silence on the question after the court ruled that defendant had obstructed justice was not a breach of the plea agreement. U.S. v. Echegollen-Barrueta, 195 F.3d 786 (5th Cir. 1999).
5th Circuit says record did not show appeal waiver was knowing and voluntary. (790) Defendant’s written plea agreement said that defendant “voluntarily and knowingly waives his right to appeal his sentence on any ground ….” At defendant’s plea hearing, the judge did not explain the waiver of appeal provision. The court also did not ask defendant whether he had read the written plea agreement and understood it, and did not warn defendant that he was waiving his right to appeal. The Fifth Circuit refused to enforce the waiver, since the record made at the Rule 11 hearing did not demonstrate that defendant knowingly and voluntarily waived his right to appeal. The court’s general statement about the sentencing guidelines did not satisfy the requirement that the court insure that the defendant fully understand the right to appeal and the consequences of waiving that right. U.S. v. Robinson, 187 F.3d 516 (5th Cir. 1999).
5th Circuit rejects motion to withdraw plea. (790) Defendant pled guilty to cocaine base charges. At the sentencing hearing, more than three months after his plea, he moved to withdraw his guilty plea. He claimed counsel gave ineffective advice concerning the effect of his plea and his possible sentence. He also argued that the prosecutor threatened him with an increased sentence if he did not plead. Finally, he claimed he was innocent. The Fifth Circuit found no error in the court’s refusal to permit defendant to withdraw his plea. Defendant was advised of the statutory minimum and maximum sentence. The district court found that defendant’s claim regarding the government’s alleged threats lacked credibility. U.S. v. Brewster, 137 F.3d 853 (5th Cir. 1998).
5th Circuit holds failure to advise of possible life sentence was harmless error. (790) Defendant pled guilty to firearms charges. During the plea colloquy, the district court advised him that he faced a maximum sentence of ten years on each of the two charges. The court also said that, under § 924(e), if he were found to have three prior violent felony convictions, he could receive a mandatory minimum of 15 years. However, the court failed to advise defendant that the applicable maximum would be life imprisonment. The Fifth Circuit held that the failure to inform defendant of the possibility of a life sentence was harmless error because defendant ultimately received a sentence less than the maximum of which he was advised. The district court imposed a sentence of 210 months, or 17.5 years, which was less than the 20-year maximum of which he was informed. This was “a prototypical case of harmless error.” U.S. v. Williams, 120 F.3d 575 (5th Cir. 1997).
5th Circuit requires “fair and just reason” to withdraw from plea agreement. (790) Defendant moved to withdraw his plea, claiming he was innocent of the charges against him. Rule 32(e) permits a court to grant a motion to withdraw a guilty plea before sentencing if the defendant shows “any fair and just reason.” Defendant contended that because his plea and the plea agreement had not been accepted by the court, it could be withdrawn at any time by either party. The Fifth Circuit held that the “fair and just reason” standard in Rule 32(e) applies when the defendant agrees to a plea agreement and enters a plea pursuant to that agreement and Rule 11. Because defendant entered the plea knowingly, freely, and voluntarily and because he failed to give a fair and just reason for withdrawing the plea, the district court’s denial of his motion to withdraw his plea was not an abuse of discretion. U.S. v. Grant, 117 F.3d 788 (5th Cir. 1997).
5th Circuit finds plea involuntary where court said it could depart even without 5K1.1 motion. (790) Defendant pled guilty to cocaine charges. In the plea agreement, the government reserved its discretion not to move for a § 5K1.1 departure. However, at the time of the plea, the district court assured defendant that it would compel the government to fulfill its side of the bargain if defendant complied with the terms of the plea agreement. The government did not refute the court’s assertion that it could sentence as if a § 5K1.1 motion had been filed. At sentencing, the government refused to make a § 5K1.1 motion and the district court did not depart downward. The Fifth Circuit held that defendant’s guilty plea was not knowing and voluntary because the district court missstated the consequences of the plea. Absent allegations of unconstitutional motive, the district court could not even address the issue of defendant’s substantial assistance, much less grant a downward departure on that basis without a § 5K1.1 motion. U.S. v. Amaya, 111 F.3d 386 (5th Cir. 1997).
5th Circuit vacates plea to one count for failure to advise defendant of mandatory minimum. (790) Defendant pled guilty to drug, firearms and money laundering charges. At the plea hearing, the district court told defendant that he faced a mandatory minimum sentence of five years based on four kilograms of cocaine. However, at sentencing, the judge found defendant responsible for at least five kilograms of cocaine, which triggered a mandatory minimum sentence of ten years for one of the drug counts. The Fifth Circuit held that the court’s failure to inform defendant of the correct mandatory minimum on one count required his plea to that count to be vacated. However, the error did not require the plea to the other drug count to be vacated, because the district court complied with the Rule 11 procedures with respect to that count. U.S. v. Still, 102 F.3d 118 (5th Cir. 1996).
5th Circuit says refusal to make § 5K1.1 motion did not breach plea agreement. (790) Defendant’s plea agreement required him to give a complete and truthful statement about his knowledge of criminal activities, and if he provided substantial assistance the government could file a § 5K1.1 motion. Prior to arraignment, defendant was interviewed by an IRS agent for about 15 minutes. The government refused to file a § 5K1.1 motion claiming that although defendant’s statements were truthful, they did not rise to the level of substantial assistance. The Fifth Circuit held that the government did not breach the plea agreement by refusing to move for a substantial assistance departure. The plea agreement stated that the government retained “sole discretion” over the decision as to whether or not to submit a motion. In such a situation, a refusal to make a § 5K1.1 motion is reviewable only for an unconstitutional motive. The government here debriefed defendant and advised the court of his cooperation. Defendant was sentenced at the bottom of the guideline range. He did not allege that the government’s refusal was based on an unconstitutional motive. U.S. v. Price, 95 F.3d 364 (5th Cir. 1996).
5th Circuit says failure to inform defendant of statutory minimum was harmless error. (790) The district court failed to inform defendant of the statutory minimum sentence at his plea hearing. The Fifth Circuit held that the error was harmless. A Rule 11 violation is harmless where the defendant’s knowledge of the correct information would not likely have affected his willingness to plead guilty. Here, defendant did not even allege that full compliance with Rule 11 would have affected his decision to plead guilty. The plea agreement recited that defendant could face ten years to life “and/or” a fine. The harm defendant alleged stemmed from the failure to delete the word “or” from the agreement. The alleged violation was not a deciding factor in defendant’s decision to plead guilty. U.S. v. Bond, 87 F.3d 695 (5th Cir. 1996).
5th Circuit finds plea agreement did not require government to ask for departure from mandatory minimum. (790) Under defendant’s plea agreement, the government agreed to recommend a sentence within the lowest 25% of the “applicable guideline range.” Defendant’s sentencing range would have been 51‑63 months, but he was subject to a 60‑month mandatory minimum. Defendant argued that his plea agreement required the district court to request a § 5K1.1 downward departure from the mandatory minimum sentence. The government argued that it fulfilled the plea bargain by requesting a 60-month sentence. The Fifth Circuit held that even if the “applicable guideline range” was construed as 51‑63 months, there was no basis for reversal, since the error would not have affected a substantial right. A downward departure from a mandatory minimum is only appropriate for the purpose of reflecting a defendant’s substantial assistance. Defendant provided no assistance to the government. Cerverizzo v. U.S., 74 F.3d 629 (5th Cir. 1996).
5th Circuit says plea agreement required giving defendant opportunity to provide substantial assistance. (790) Defendant’s plea agreement provided that he would plead guilty to exporting a stolen vehicle and the government would move for a § 5K1.1 departure if defendant provided substantial assistance. The court refused to accept defendant’s guilty plea because he maintained that he did not know that the vehicle was stolen. With the government’s consent, defendant then changed his plea to nolo contendere, and the written agreement was revised to reflect that the plea would be no contest rather than guilty. Because of defendant’s continued protestations of a lack of guilty knowledge, the government made no effort to determine whether he could furnish substantial assistance. The Fifth Circuit held that this breached the plea agreement. Defendant’s denial of knowledge that the vehicle was stolen did not excuse the government’s conduct. The government was aware of defendant’s claim when it agreed to the amended plea agreement. U.S. v. Laday, 56 F.3d 24 (5th Cir. 1995).
5th Circuit, en banc, uses counts dismissed in plea bargain to depart upward. (790) Defendant was originally charged with four bank robberies. He pled guilty to two of the robberies, and the government agreed to dismiss two of the counts and forego prosecution of two additional attempted robberies. The district departed upward on the ground that defendant’s criminal history was underrepresented because of the dismissed robberies. The 5th Circuit, en banc, held that criminal conduct underlying counts dismissed in a plea agreement may be used to justify an upward departure. Section 4A1.3(e) expressly authorizes a court to depart based on prior similar adult criminal conduct not resulting in conviction. There is no exception for conduct that is the subject of dismissed counts. The court’s acceptance of the plea agreement did not preclude it from finding that defendant’s criminal history score did not adequately reflect his past criminal conduct. The plea agreement here did not prevent the court from using the dismissed counts as a basis for a departure. Judge Goldberg and Judge DeMoss dissented. U.S. v. Ashburn, 38 F.3d 803 (5th Cir. 1994) (en banc).
5th Circuit says requiring repayment schedule with IRS conflicted with plea agreement. (790) Defendant did not file tax returns or pay taxes from 1982 to 1989. His plea agreement provided that the court could order defendant as a condition of supervised release to “resolve” any civil tax liability with the IRS. The district court ordered that defendant reach a repayment schedule with the IRS during his year of supervised release. The 5th Circuit held that this obligation was inconsistent with the plea agreement. The plea agreement only obligated defendant to negotiate a settlement with the IRS. Defendant never stated that he would pay all or any specific portion of his remaining tax liability. U.S. v. Stout, 32 F.3d 901 (5th Cir. 1994).
5th Circuit holds that second prosecution did not violate plea agreement. (790) Defendant first pled guilty to a marijuana offense. At sentencing, the district court found that a cocaine offense was part of the same course of conduct, and included the cocaine as relevant conduct to determine defendant’s sentence. The government then indicted defendant on cocaine importation charges. The 5th Circuit held that the cocaine prosecution did not violate defendant’s plea agreement in the marijuana case. Although defendant stated at sentencing on the marijuana offense that he would be immune from prosecution in other cases, defense counsel immediately contradicted defendant’s statement. Defendant was expressly informed by the court that the government wanted to indict him later on the cocaine charges. The present indictment was not the same cocaine charge that was dismissed pursuant to the plea agreement. The fact that the two offenses were part of the same course of conduct did not make them the same conspiracy. U.S. v. Wittie, 25 F.3d 250 (5th Cir. 1994), aff’d on other grounds, sub nom. Witte v. U.S., 515 U.S. 389, 115 S.Ct. 2199 (1995).
5th Circuit remands to determine parties’ interpretation of substantial assistance. (790) Defendant’s plea agreement stated that if defendant provided substantial assistance, the government “may” make a motion for a downward departure at sentencing. The 5th Circuit remanded because the district court found that defendant had not rendered substantial assistance without making any determinations as to the reasonable expectations of either defendant or the government. The government stated that defendant should provide truthful information and testimony if necessary. However, the government never asked defendant to testify and never verified if the information he provided was truthful. Moreover, the record did not show how much discretion the government retained to make the substantial assistance motion. Given the government’s candid concessions in oral argument, it could no longer insist that defendant intentionally entered into an illusory “bargain” which gave the government unfettered discretion to refuse to make the motion. U.S. v. Hernandez, 17 F.3d 78 (5th Cir. 1994).
5th Circuit remands to determine whether defendant provided substantial assistance. (790) Defendant argued that a letter provided by a Justice Department trial attorney demonstrated that defendant had provided substantial assistance, thereby obligating the government under the plea agreement to file a motion for a downward departure. The 5th Circuit remanded. The district court had concluded, without making any determination as to the reasonable expectations of the parties, that defendant’s assistance was not substantial. The record was silent as to what the parties believed would constitute substantial assistance. The court also did not address defendant’s claim that government investigators failed to follow up on information he provided and fully debrief him. If on remand the district court determined that defendant did provide substantial assistance, then it must determine whether the plea agreement obligated the government to move for a downward departure. U.S. v. Wilder, 15 F.3d 1292 (5th Cir. 1994).
5th Circuit holds that prosecutor’s reference to PSR did not breach plea agreement. (790) Defendant argued that the government breached his plea agreement by recommending to the district court that it adopt the PSR, which in turn recommended an upward departure from the guidelines fine range. The plea agreement provided that the government would not oppose any sentence falling within defendant’s guideline range. The 5th Circuit found that the prosecutor’s comments did not breach the plea agreement. The prosecutor was not recommending that the district court depart from the applicable fine guideline range, but was commenting on the usefulness of the PSR’s recitation of the facts. U.S. v. Wilder, 15 F.3d 1292 (5th Cir. 1994).
5th Circuit says failure to make substantial assistance motion did not violate plea agreement. (790) The 5th Circuit rejected defendant’s claim that the government’s failure to move for a substantial assistance departure violated his plea agreement. The agreement expressly provided that the government retained absolute discretion to move for the section 5K1.1 departure. The prosecutor’s statements at rearraignment did not amend the plea agreement to reduce the government’s discretion to move for the departure. Although the prosecutor referred to the government’s willingness to file a section 5K1.1 motion, the prosecutor agreed to make such a motion in accordance with the plea agreement. There was no indication that the government intended to relinquish the discretion it had expressly reserved in the plea agreement. U.S. v. Garcia-Bonilla, 11 F.3d 45 (5th Cir. 1993).
5th Circuit says mandatory minimum may not be avoided by failing to allege quantity in indictment. (790) The 5th Circuit ruled that because the statutory minimum sentences in 21 U.S.C. § 841(b)(1)(A) and (B) are incorporated in the quantity-based guidelines, the government could not avoid them the statutory minimum sentences by failing to include a quantity allegation in the indictment or information. The failure to include a quantity allegation has no effect on the appropriate sentence under the guidelines. The district court erroneously informed defendant he was subject to imprisonment for zero to 10 years, under section 841(b)(1)(C). However, he was not guaranteed this sentencing range because the quantity of drugs involved in the offense had yet to be determined. While the district court was not required to calculate defendant’s guideline range before accepting his guilty plea, it was required to inform him of any minimum sentences he might faces. The district court’s failure to advise defendant, before accepting his guilty plea, that he might be subject to certain mandatory minimum penalties, violated Fed. R. Crim. P. 11 and required the plea to be vacated. U.S. v. Watch, 7 F.3d 422 (5th Cir. 1993).
5th Circuit holds failure to advise of mandatory sentence for being on release was harmless error. (790) The district court failed to advise defendant at the time of his plea that the maximum sentence would include an additional mandatory sentence under 18 U.S.C. § 3147 for committing the offense while on release. The 5th Circuit held that under U.S. v. Johnson, 1 F.3d 296 (1993), the court’s less than perfect compliance with Rule 11 was harmless error. The sentencing court informed defendant that his maximum possible prison time was 18 years, when in fact, the maximum period was 28 years. However, defendant was actually sentenced to only six years. Therefore, he was not harmed. Judge Jolly dissented, since under the majority’s analysis, when a defendant is sentenced to a term less than the maximum of which he is advised, the failure to inform him of the actual maximum sentence will always be harmless error. U.S. v. Pierce, 5 F.3d 791 (5th Cir. 1993).
5th Circuit finds government did not prevent defendant from providing substantial assistance through debriefing interview. (790) Defendant argued that the government violated his plea agreement by failing to allow him the opportunity to provide substantial assistance through a debriefing interview. The 5th Circuit rejected the claim, finding the record reflected that defendant was debriefed. Defendant’s written objection to the PSR acknowledged that he was completely debriefed, and at the sentencing hearing, defendant’s former counsel made several references to the debriefing. Moreover, defendant’s former counsel implicitly agreed that it would be appropriate for the government to seek a reduction under Rule 35 if defendant provided substantial assistance after sentencing. Defendant later received a 60-month reduction in his sentence. Having so acquiesced, defendant could not now contend that the government violated the plea agreement. U.S. v. Palomo, 998 F.2d 253 (5th Cir. 1993).
5th Circuit requires hearing to determine meaning of ambiguous plea agreement. (790) Defendant’s plea agreement was ambiguous as to whether the government would merely be precluded from seeking to enhance defendant’s sentence based on a prior drug conviction or whether the government would also be precluded from arguing that defendant should be sentenced based on a drug quantity exceeding 50 kilograms of marijuana. Because defense counsel’s behavior at sentencing would have constituted ineffective assistance if the second meaning were the one intended, the 5th Circuit remanded the case for determination of the meaning of the plea agreement and what defendant had been told it meant. U.S. v. Borders, 992 F.2d 563 (5th Cir. 1993)
5th Circuit says defendant’s ongoing criminal conduct justifies refusal to make 5K1.1 motion. (790) Defendant’s plea agreement provided that he would cooperate and that if he complied with section 5K1.1, the government would move for a downward departure. Although defendant cooperated, the government refused to make the motion after discovering that defendant’s failed to disclose his involvement in ongoing drug activities in Florida. The 5th Circuit rejected defendant’s claim that the government breached his plea agreement. By concealing information about his participation in ongoing drug activities, defendant failed to satisfy the “substantial assistance” and “truthful” information conditions of his plea agreement. This relieved the government of its obligation to make a section 5K1.1 motion. The fact that defendant was acquitted of charges relating to the Florida investigation did not change the analysis, since defendant bore the burden of proving that the government breached the plea agreement. U.S. v. Watson, 988 F.2d 544 (5th Cir. 1993).
5th Circuit remands to decide if government breached obligation to file 5K1.1 motion. (790) Defendant’s plea agreement provided that if he fully cooperated, the government would move for a downward departure under section 5K1.1. At sentencing, the government offered no evidence to refute defendant’s claim that he fully cooperated with the government. The district court made no finding as to whether the government breached the agreement. The 5th Circuit remanded for a ruling on this question. Generally, the prosecutor’s power to make or withhold a section 5K1.1 motion is a form of prosecutorial discretion which is not reviewable for arbitrariness. However, if a prosecutor breaches a promise to make a section 5K1.1 motion, a different rule applies. If the promise was material to the guilty plea, the court must allow the defendant to withdraw the plea and start over. Here, the district court had the authority to determine whether defendant satisfied the terms of his plea agreement, and to enforce the agreement if he did. U.S. v. Watson, 988 F.2d 544 (5th Cir. 1993).
5th Circuit says defendant need not be advised at plea hearing that relevant conduct will be considered at sentencing. (790) The 5th Circuit rejected defendant’s claim that he had a due process right to be informed, prior to the district court’s acceptance of his guilty plea, that the court would consider all relevant conduct in determining his sentence. Due process does not mandate notice, advice or a possible prediction of where, within the statutory range, the guideline sentence will fall. U.S. v. Watson, 988 F.2d 544 (5th Cir. 1993).
5th Circuit says consideration of relevant conduct did not violate plea agreement. (790) Defendant’s plea agreement provided that the government would not prosecute defendant for any offense other than the amphetamine offense to which he pled guilty. The 5th Circuit held that the district court’s consideration of additional quantities of phenylacetic acid as relevant conduct did not violate this agreement. Consideration of relevant conduct is not the equivalent of prosecuting the defendant for an additional offense. Nor did it violate the plea agreement to consider relevant but uncharged conduct in selecting a punishment within the statutory range. The phenylacetic acid was conduct relevant to defendant’s offense of possession of one pound of amphetamine. Defendants negotiated to purchase both substances, to be paid for and delivered at the same time and place. The fact that a co-defendant was arrested before he took actual possession of the phenylacetic acid did not change this fact. U.S. v. Hoster, 988 F.2d 1374 (5th Cir. 1993).
5th Circuit rejects need to advise defendant of minimum guideline sentence. (790) The 5th Circuit rejected defendant’s contention that the district court failed to advise him of a minimum mandatory sentence before accepting his guilty plea. Fed. R. Crim. P. 11(c)(1) only requires advice as to minimum statutory sentences; it does not require a district court to predict the guideline range applicable to a defendant before accepting a guilty plea and before a PSR is prepared. U.S. v. Hoster, 988 F.2d 1374 (5th Cir. 1993).
5th Circuit says prosecutor breached agreement by opposing credit for acceptance of responsibility. (790) Defendant’s plea agreement stipulated that defendant accepted responsibility for his conduct. At the initial plea hearing, the district court granted defendant a one level reduction for acceptance of responsibility. The 5th Circuit remanded, ruling that a district court may not award a one-level reduction for partial acceptance of responsibility. At the second sentencing hearing, the prosecutor stated that defendant had not demonstrated a true acceptance of responsibility and the district court denied the reduction. The 5th Circuit held that the prosecutor breached the plea agreement by recommending against the reduction. The government did more than correct a factual inaccuracy in the record. The prosecutor characterized the evidence and argued the effect of the evidence to the judge. U.S. v. Valencia, 985 F.2d 758 (5th Cir. 1993).
5th Circuit finds understatement of minimum potential term of supervised release was harmless. (790) At defendant’s re-arraignment hearing, the district court understated by one year the minimum potential term of supervised release. The 5th Circuit held that this constituted harmless error. Under U.S. v. Bachynsky, 934 F.2d 1349 (5th Cir.) (en banc), cert. denied, 112 S.Ct. 402 (1991), a district court’s failure to mention the possibility of supervised release does not alone constitute a total failure to address a core concern of Rule 11, provided the sentence actually cannot restrict the defendant’s liberty for a period exceeding the statutory maximum as advised. U.S. v. Gracia, 983 F.2d 625 (5th Cir. 1993).
5th Circuit upholds voluntariness of plea and says court satisfied Rule 11 requirements. (790) The 5th Circuit rejected defendant’s claim that the district court violated Rule 11(d) by failing to inquire into promises apart from the plea agreement. At re-arraignment, defendant testified that no one had threatened or forced him to plead guilty, and that no one had made any “prediction, prophecy or promise” as to his sentence. Defendant’s claim that he relied upon misinformation from both prosecution and defense counsel as to his likely sentence did not render his plea involuntary where, as here, the trial court properly advised defendant about the possible maximum penalty. U.S. v. Gracia, 983 F.2d 625 (5th Cir. 1993).
5th Circuit rejects claim that prosecutor misled defendant where he was informed of plea consequences. (790) The 5th Circuit rejected defendant’s claim that he was entitled to withdraw his guilty plea because the prosecutor misled him as to his possible sentence. At his plea hearing, defendant was advised that his guideline sentence could not be predicted and that it was directly related to the amount of drugs involved. Defendant was fully aware of his potential prison term and fine. Prior to accepting the plea, the court informed defendant that each count carried a maximum of 20 years’ imprisonment, three years supervised release, and up to a million dollar fine. He received a sentence of 13 years’ and four months’ imprisonment, three years of supervised release, and a $2,000 fine. Defendant was aware of the consequences of his plea. U.S. v. Young, 981 F.2d 180 (5th Cir. 1992).
5th Circuit vacates guilty plea for inadequate advice about supervised release and departures. (790) Defendant argued that Fed. R. Crim. P. 11 was violated by the district court’s failure to (a) provide an explanation of the effect of a violation of supervised release, and (b) advise defendant that under certain circumstances it could depart upward from the guideline range. The 5th Circuit found that both failures were partial failures to address the core concern of Rule 11 of making sure that a defendant understands the consequences of his plea. Although each by itself might not necessitate vacation of the sentence, the two together did not constitute harmless error. U.S. v. Hekimain, 975 F.2d 1098 (5th Cir. 1992).
5th Circuit says prosecutor’s statements, with court’s follow-up questions, satisfied Rule 11. (790) Defendant complained that the district court failed to advise him personally of the statutory maximum penalty for his offense, as required by Fed. R. Crim. P. 11(c)(1). The 5th Circuit held that the prosecutor’s statements, along with the court’s follow-up questions, satisfied the requirements of Rule 11(c) that the trial court advise a defendant of the maximum penalty. At the plea hearing, the prosecutor read the indictment and stated the maximum term of imprisonment and supervised release faced by defendant. The court then asked defense counsel whether he had discussed the maximum penalties with his client. After receiving an affirmative response, the court asked defendant whether he understood the maximum penalties involved. Defendant replied that he did. U.S. v. Hekimain, 975 F.2d 1098 (5th Cir. 1992).
5th Circuit affirms that defendant was adequately informed of plea agreement’s contents. (790) The 5th Circuit rejected defendant’s claim that he was inadequately informed of the plea agreement’s contents, including the 270-month sentence. The transcript of the plea hearing indicated that (a) defendant testified that he had reached a plea agreement with the government and had seen the written agreement, (b) the court, prosecutor and defense counsel questioned defendant extensively about the plea agreement, its contents and its consequences, (c) defendant asked questions, all of which were answered, and (d) the 270-month sentence was referred to at least nine times. U.S. v. Navejar, 963 F.2d 732 (5th Cir. 1992).
5th Circuit rules that government breached its promise to make no sentencing recommendation. (790) Defendant contended for the first time on appeal that the government’s submission of four memoranda to the probation officer advocating the use of different guideline sections violated its promise to “make no recommendation” as to his sentence. The 5th Circuit held that a prosecutor’s breach of a plea agreement can amount to plain error, thus making the issue reviewable even though defendant failed to raise the issue below. In this case, the government did breach its promise. To the extent that the government merely corrected factual misstatements in defendant’s presentence report, its conduct was permissible. However, the government did more than that, suggesting a base offense level, advocating a ten level enhancement, arguing for a specific minimum offense level, and recommending an upward departure. Even though the comments referred to guideline levels rather than months or years, this did not alter the fact that the government suggested a term of imprisonment for defendant. U.S. v. Goldfaden, 959 F.2d 1324 (5th Cir. 1992).
5th Circuit upholds denial of motion to vacate plea. (790) The 5th Circuit upheld the district court’s denial of defendant’s motion to withdraw his plea, given the 69-day delay between defendant’s plea and his verbal motion to withdraw the plea, his failure to assert his innocence in support of the motion, the knowing and voluntary nature of his initial plea, and the prejudice a withdrawal would cause the government. U.S. v. Rinard, 956 F.2d 85 (5th Cir. 1992).
5th Circuit rejects defendant’s right to withdraw guilty plea based on ignorance of career offender status. (790) The 5th Circuit rejected defendant’s claim that the district court should have permitted him to withdraw his guilty plea because he was unaware of the possible application of the career offender enhancement. As long as a defendant understands the length of time he could receive, he is fully aware of his plea’s consequences. The district court informed defendant, prior to accepting his plea, that he faced a maximum of 20 years’ imprisonment and a $1 million fine. Defendant acknowledged that he understood this admonishment. He received a 14 year sentence and a $1,000 fine. Thus, he was fully aware of the consequences of his plea. U.S. v. Gaitan, 954 F.2d 1005 (5th Cir. 1992).
5th Circuit rejects claim that plea agreement entitled defendant to withdraw plea if court sentenced him outside guideline range. (790) The 5th Circuit rejected defendant’s claim that he was led to believe that under his plea agreement, if the court refused to sentence him within the guideline range, it was required to permit him to withdraw his guilty plea. although the court’s explanation of the circumstances under which defendant could withdraw his plea was confusing, the court clearly stated that defendant could only withdraw his plea if the court considered matters specifically excluded from consideration under the plea agreement. The court never told defendant that it would impose a particular guideline sentence or that it would not depart upward. Therefore, the court was under no obligation to permit defendant to withdraw his plea if it departed upward. U.S. v. Bachynsky, 949 F.2d 722 (5th Cir. 1991).
5th Circuit finds no breach of plea agreement despite government’s inclusion of uncharged drugs. (790) Defendants contended that the government violated their plea agreement not to prosecute them for additional offenses by recommending inclusion of 17 ounces of methamphetamine not involved in the count of conviction. The 5th Circuit rejected this contention, ruling that the government kept its promise not to prosecute, because including the additional 17 ounces in sentencing was not equivalent to prosecution. The court also rejected defendants’ claim that their guilty pleas were rendered involuntary by the government’s alleged misrepresentation that their base offense level would be based on only 269 grams. The guilty pleas were voluntary because the district court informed both defendants of the maximum possible statutory punishment they faced. U.S. v. Kinder, 946 F.2d 362 (5th Cir. 1991).
5th Circuit finds no grounds to withdraw plea. (790) The 5th Circuit affirmed the district court’s denial of defendant’s motion to withdraw his guilty plea. In its order, the district court articulated the appropriate standard for considering the request and carefully applied this standard to the facts. Defendant failed to allege facts showing that his withdrawal of the plea was justified, merely asserting “conclusory allegations” that were refuted by the record. U.S. v. Bounds, 943 F.2d 541 (5th Cir. 1991), appeal after remand, 985 F.2d 188 (5th Cir. 1993).
5th Circuit rules government’s failure to advise court of defendant’s cooperation did not breach plea agreement. (790) Defendant’s plea agreement required the government to inform the court of defendant’s cooperation. Notwithstanding this provision, the 5th Circuit rejected defendant’s claim that the government’s failure to advise the court of defendant’s cooperation was a breach of his plea agreement. The government’s failure to inform the court of defendant’s cooperation did not deprive the court of any information that might be relevant to sentencing. The extent of defendant’s cooperation was to make a voluntary and truthful admission to the crime charged, a fact made known to the court and confirmed by the government at sentencing. Although the government did not take the initiative to mention defendant’s cooperation, its actions did not amount to a breach of the plea agreement. U.S. v. Hooten, 942 F.2d 878 (5th Cir. 1991).
5th Circuit rules failure to advise about supervised release was not harmless. (790) In U.S. v. Bachynsky, 934 F.2d 1349 (5th Cir. 1991), overruling recognized by U.S. v. Watch, 7 F.3d 422 (5th Cir. 1993), the 5th Circuit overruled prior circuit precedent and held that a district court’s total failure during a plea colloquy to mention or explain the effect of supervised release does not automatically constitute a failure to address a core concern of Fed. R. Crim. P. 11 and thus does not automatically mandate reversal. Here, the district court’s total failure to mention or explain the effect of supervised release was not harmless error. In contrast to the defendant in Bachynsky, defendant faced a possible period of incarceration in excess of the maximum penalty of which he was advised. Moreover, defendant was a foreigner who did not speak English, was only 21 years old, had a sixth grade education, and pled guilty to the indictment without the benefit of a plea bargain. U.S. v. Garcia-Garcia, 939 F.2d 230 (5th Cir. 1991).
5th Circuit rules that government must move for downward departure if defendant relied upon government promise. (790) Government counsel sent defense counsel a proposed plea agreement with a transmittal letter stating: “In addition, I will recommend departure to the court based upon your client’s full and complete debriefing and substantial assistance to the government in resolving this case as outlined above.” The plea agreement was silent on this matter, but did contain a provision that stated that it was the entire agreement between the parties. Defendant contended that the government’s failure to move for a departure was a breach of the plea agreement. The 5th Circuit remanded for the district court to determine whether defendant, in reliance on the government’s representation, accepted the government’s offer and did all that he was capable of doing under the circumstances. If defendant performed his obligation, or was ready to perform his obligation but was unable to do so because the government had no further need or opted not to use him, then the government was obliged to move for the downward departure. The district court could then enter whatever sentence it deemed appropriate. U.S. v. Melton, 930 F.2d 1096 (5th Cir. 1991).
5th Circuit finds no breach of plea agreement in government’s “inflammatory assertions” about defendant. (790) Defendant’s plea agreement provided that the government would recommend a sentence at the low end of the guideline range. Defendant claimed that the government violated the plea agreement by making “inflammatory assertions” to the district court in the presentence investigation report. The report stated that defendant’s transportation of explosive materials was “extremely unsafe” and could have caused “significant property damage and human casualty.” The district court ultimately departed upward based on the public risk caused by the offense. The 5th Circuit found no plea violation. It was not reasonable for defendant to believe that the government would withhold pertinent sentencing information from the judge. U.S. v. Huddleston, 929 F.2d 1030 (5th Cir. 1991).
5th Circuit finds district court did not improperly fail to explain application of guidelines. (790) Defendant argued that the district court improperly failed to explain the application of the guidelines to him at his plea hearing. The 5th Circuit rejected this argument. Under Fed. R. Crim. P. 11, in effect at the time defendant was sentenced, the district court was not required to inform a defendant about the applicable guideline range. Moreover, the provisions in defendant’s plea agreement concerning offense level and acceptance of responsibility demonstrated that he was aware of the applicability of the guidelines. Even as amended, Rule 11 does not require a court to calculate and explain the guideline sentence before accepting a guilty plea. U.S. v. Tuangmaneeratmun, 925 F.2d 797 (5th Cir. 1991).
5th Circuit finds no breach of plea agreement in prosecutor’s seeking enhancement for conduct outside offense of conviction. (790) The 5th Circuit rejected defendant’s contention that the U.S. Attorney’s office breached the plea agreement by seeking a sentence enhancement based upon offenses not included in defendant’s indictment. A prosecutor may inform the court of mitigating and aggravating factors in the determination of the sentence. As part of the plea agreement, the prosecutor merely agreed not to prosecute defendant for these offenses, not to withhold facts from the court. U.S. v. Rodriguez, 925 F.2d 107 (5th Cir. 1991).
5th Circuit finds failure to inform defendant of maximum term of supervised release was harmless error. (790) Defendant contended that his plea should be vacated because the district court failed to advise him of the maximum possible period of supervised release. The court informed defendant twice that the maximum possible penalty was 20 years imprisonment and/or a one million dollar fine, and in addition, a term of supervised release of at least three years. Defendant ultimately received a five year term of supervised release. The 5th Circuit found that it was harmless error to fail to advise defendant of the maximum term of supervised release. It was unreasonable to believe that defendant would not have pled guilty had he been advised of the maximum term for supervised release. U.S. v. Hatchett, 923 F.2d 369 (5th Cir. 1991).
5th Circuit holds that upward departure did not render plea involuntary despite counsel’s advice. (790) Defendant argued that the district court’s upward departure from the guidelines rendered his plea involuntary because he relied on his attorney’s representation that he would be sentenced within the guidelines. The 5th Circuit rejected the argument, ruling that Rule 11, Fed. R. Crim. P., requires only that the defendant be informed of the maximum prison term for the offense charged. “[E]rroneous advice as to the guideline sentence does not constitute a violation of Rule 11.” Analogously, “the court’s decision to impose a sentence different than that indicated by the guidelines does not render a guilty plea unknowing or involuntary.” U.S. v. Jones, 905 F.2d 867 (5th Cir. 1990).
5th Circuit vacates conviction for failure to inform defendant of consequences of his plea. (790) During his guilty plea, the district court failed to inform defendant of the maximum and minimum penalties for his offense provided by law. The 5th Circuit rejected the government’s argument that since the indictment contained this information, the failure was harmless error. This was held not to be harmless error since there was a complete failure by the district court to address the core requirements of Rule 11 that a defendant be informed of and understand the direct consequences of his plea. The court gave no admonition except to inform defendant of his jury trial right. This failure to comply with rule 11 required reversal of the conviction. U.S. v. Pierce, 893 F.2d 669 (5th Cir. 1990).
6th Circuit reverses where crack defendant was misinformed about crack penalty in light of Dorsey. (790) In March 2011, defendant pled guilty to crack cocaine charges. He later unsuccessfully moved to withdraw his guilty plea, arguing that the district court violated Fed. R. Crim. P. 11(b)(1)(H)-(I) by incorrectly advising him of the statutory penalty range. While the case was pending on appeal, the Supreme Court decided in Dorsey v. U.S., 132 S.Ct. 2321 (2012), that defendants sentenced after the August 3, 2010 effective date of the Fair Sentencing Act of 2010 (FSA), are entitled to the FSA’s more lenient crack penalties. Defendant asserted that if the effects of the FSA had been accurately disclosed, he would not have accepted the government’s offer of a 188-month sentence. The Sixth Circuit held that given Dorsey, the district court violated Rule 11 by advising him that he faced 5 to 40 years in custody, when the FSA range was 0 to 20 years. The misstatement affected defendant’s substantial rights by changing the calculus under which he weighed and accepted the government’s plea offer. U.S. v. Hogg, 721 F.3d 554 (6th Cir. 2013).
6th Circuit affirms sentence despite government’s breach of plea agreement. (790) The government agreed in defendant’s plea agreement to recommend a sentence of no more than the high-end of his sentencing guideline range, which the agreement calculated to be 188-235 months. The district court adopted a lower guideline range, 135-168 months, and the government breached the plea agreement by arguing for a sentence of 235 months. Defendant did not object to the government’s breach. The court sentenced defendant to 168 months, the upper limit of the agreed range. The Sixth Circuit held that the government’s breach did not affect defendant’s substantial rights, and therefore it did not meet the plain error test. Although defendant argued that the judge was persuaded by the government’s urging for an upward variance to sentence defendant to the upper limit of the agreed range, he did not meet his burden of showing that the court was swayed by the breach. Defendant received the benefit of his deal despite the government’s breach. U.S. v. Keller, 665 F.3d 711 (6th Cir. 2011).
6th Circuit holds that plea agreement rendered terms of proffer letter no longer binding. (790) During plea negotiations in 2007, defendant met with the government for a proffer session. A proffer letter from the government provided that no statements made by defendant during the proffer discussion would be offered against defendant in the government’s case-in-chief, but the government could use the proffer to rebut any inconsistent evidence offered by defendant. The parties were unable to reach a plea agreement at that time. However, in 2008, defendant pled guilty under a written plea agreement which stated that it superseded all other understandings between the parties. The agreement did not mention the proffer letter. Before sentencing, defendant objected to several enhancements recommended by his PSR. The government stated its intent to use his proffer statement to establish the facts underlying the enhancements. The Sixth Circuit held that the defendant’s plea agreement rendered the terms of the earlier proffer letter no longer binding on the parties. Because the government made no promises concerning the use of defendant’s proffer in the plea agreement, the government’s use of the proffer statement did not breach the plea agreement. U.S. v. Quesada, 607 F.3d 1128 (6th Cir. 2010).
6th Circuit says use of dismissed conduct did not violate plea agreement. (790) In connection with a plea agreement, the government dropped three of four firearms counts, and defendant pled guilty to being a felon in possession of ammunition. The district court increased his sentence based on his possession of a sawed-off shotgun, which was the subject of one of the dismissed counts. The Sixth Circuit held that the use of the dismissed conduct was not barred by the plea agreement. The agreement allowed the court to impose any sentence within the statutory maximum. Defendant’s claim that he did not benefit from the agreement was not tenable. Consistent with the agreement, he became eligible for, and ultimately received, a three-level reduction for acceptance of responsibility, and avoided trial on all four counts and a potentially higher sentence. He also was on notice that the sentencing court could rely on the dismissed conduct at sentencing. The sentence did not violate the 6th Amendment. A judge’s reliance on dismissed conduct does not present the same constitutional issues as reliance on acquitted conduct, see U.S. v. White, 503 F.3d 487 (6th Cir. 2007), reh’g en banc granted and opinion withdrawn (6th Cir. Nov. 30, 2007), which is currently before the en banc court. U.S. v. Conway, 513 F.3d 640 (6th Cir. 2008).
6th Circuit holds that arguing for enhancement after preparation of PSR did not breach plea agreement. (790) The government promised, in defendant’s plea agreement, that it would “not recommend or request a sentencing enhancement for the defendant’s role in the offense (§ 3B1.1) during the preparation of the Presentencing Investigation Report (PSR).” The Sixth Circuit held that the government did not breach the agreement by arguing for the § 3B1.1 enhancement during sentencing, since this occurred after the preparation of the PSR. The determinative factor in interpreting a plea agreement is not the parties’ actual understanding of the terms of the agreement; instead an agreement must be construed as a reasonable person would interpret its words. A reasonable person would read the agreement to provide that the government’s obligation was limited to not recommending an enhancement during the time in which the probation office was preparing the PSR. After the PSR was completed, the government’s obligation was at an end. In addition, the government did not breach the agreement by providing the probation office with the information upon which it relied in recommending the enhancement. Proving factual information to the probation office does not constitute “recommending or requesting a sentencing enhancement.” U.S. v. Moncivais, 492 F.3d 652 (6th Cir. 2007).
6th Circuit finds government was required by plea agreement to advise the court whether defendant’s assistance was substantial. (790) Defendant’s plea agreement stated: “If, in the sole discretion of the United States, the defendant provides substantial assistance, the United States will make a motion for downward departure pursuant to section 5K1.1 of the Sentencing Guidelines, or 18 U.S.C. § 3553(e), or both …” At sentencing, the government did not move for a downward departure. The court denied defendant’s motion to compel the government to move for a departure, ruling that because the plea agreement gave the government complete discretion whether to file a substantial assistance motion, its only ground for reviewing the government actions was an unconstitutional motive, which defendant did not allege. The Sixth Circuit remanded. The determinative issue was not whether the government possessed complete discretion to determine if defendant provided substantial assistance, but whether the government made a determination regarding the substantiality of defendant’s assistance. On the record here, the government did not make such a determination. The panel remanded for a new hearing during which the government shall advise the district court of its factual determination, made in its sole discretion, of whether defendant’s assistance was “substantial.” U.S. v. Villareal, 491 F.3d 605 (6th Cir. 2007).
6th Circuit holds that Booker did not invalidate plea agreement to be sentenced under guidelines. (790) Defendant argued that his sentence was inconsistent with the Supreme Court’s decision in U.S. v. Booker, 543 U.S. 220 (2005). However, defendant’s enhancement arose from his status as a career offender under § 4B1.1, to which he stipulated in his plea agreement. The Sixth Amendment does not apply to agreed-upon facts; it regulates the decision-maker of the disputed facts. Even had the parties disputed the fact of defendant’s prior conviction, his sentence stemmed from the very type of recidivism enhancement that Almendarez-Torres v. U.S., 523 U.S. 224 (1998) held need not be charged and proved before a jury. Booker did not did not invalidate the plea agreement. Where developments in the law later expand a right that a defendant has waived in a plea agreement, the change in law does not suddenly make the plea involuntary or unknowing or otherwise undo its binding nature. U.S. v. Bradley, 400 F.3d 459 (6th Cir. 2005).
6th Circuit finds no plea agreement breach where defendant misunderstood agreement. (790) Defendant argued that the government breached its plea agreement with him when it did not argue at sentencing for the offense level of 26, and as a result, he was entitled to enforcement of that agreement and an offense level of 26. However, the Sixth Circuit found that defendant misunderstood the agreement. The agreement merely stipulated that the base offense level would be 26, as it was in the PSR. The total offense level was 34. Thus, there was no breach of the plea agreement. U.S. v. Garcia-Meza, 315 F.3d 683 (6th Cir. 2003).
6th Circuit holds that court’s use of incorrect statutory sentencing range was harmless error. (790) The sentencing court, as well as counsel, erroneously understood that defendant’s sentence was governed by a statutory range of ten years to life, pursuant to 21 U.S.C. § 841(b)(1)(A)(viii), for an offense involving fifty grams or more of methamphetamine. Because he pled guilty to an offense involving 50 grams of more of a mixture containing methamphetamine, the applicable statutory range was actually five to 40 years, pursuant to 21 U.S.C. § 841(b)(1)(B)(viii). The Sixth Circuit held that the district court’s misunderstanding of the statutory sentencing range was harmless error. The record was totally devoid of grounds to believe the error played any role in the imposition of sentence. The district court’s sentencing calculations were explicitly articulated and were based exclusively on the Sentencing Guidelines, without even so much as a mention of the statutory range. Defendant’s sentence fell within both the erroneous and the correct statutory penalty range. Remand for resentencing would be “a useless and wasteful formality.” U.S. v. Hopkins, 295 F.3d 549 (6th Cir. 2002).
6th Circuit says government did not prove defendants breached agreement. (790) Defendants’ plea agreement required the government to file a downward departure motion if, in the sole discretion of the government, defendants provided substantial assistance in the prosecution or investigation of other suspects. Both defendants provided the government with some assistance. However, after both men were seen smoking a marijuana joint in jail, the government refused to file the motions, claiming that defendants had lost their usefulness as trial witnesses. However, this showed only that the government determined that defendants had not substantially assisted the prosecution of other suspects. The government did not address whether defendants had provided substantial assistance during the investigation of other suspects, and it had no proof that it in fact decided that defendants did not provide such assistance. While the government might have inadvertently failed to determine whether defendants provided substantial assistance during the investigation of other suspects, an inadvertent failure to perform obligations under a plea agreement is nonetheless a breach. The Sixth Circuit ruled that the government failed to meet its burden of proving defendants’ breaches before declining to honor its obligations under the agreement. Absent this proof, the government was bound by the plea agreement and was required to file downward departure motions, and its failure to do so breached the agreement. U.S. v. Lukse, 286 F.3d 906 (6th Cir. 2002).
6th Circuit holds that agreement’s bar on use of relevant conduct included leadership adjustment. (790) Defendant’s plea agreement provided that the government would recommend that “the defendant’s base offense level be calculated using 1000 pounds of marijuana and 1 kilogram of cocaine and that no other relevant conduct be used to increase the defendant’s base offense level.” Defendant argued that she understood the plea agreement to mean that no conduct other than the quantity of drugs specified in the plea agreement would be used to increase her sentence. The government contended that the disputed language related solely to the amount of marijuana and cocaine that would be used to calculate her offense level. Relying on the guidelines’ definition of relevant conduct, the Sixth Circuit found it “eminently reasonable” for defendant to believe that when the agreement agreed to recommend that no other “relevant conduct” be used to increase her base offense level, it foreclosed any opportunity to increase her sentence through a § 3B1.1(a) leadership enhancement. Under USSG § 1B1.3, the term “relevant conduct” means “Factors that Determine Guideline Range.” Thus, relevant conduct includes those factors that contribute to adjusting the offense level upward. “Relevant conduct” incorporates “the base offense level … specific offense characteristics … and adjustments in Chapter Three.” Moreover, ambiguities in plea agreement must be construed against the government. U.S. v. Fitch, 282 F.3d 364 (6th Cir. 2002).
6th Circuit holds that breach of plea agreement constituted plain error. (790) As part of defendant’s plea agreement, the government promised to recommend that defendant be sentenced at the low end of the applicable guideline range. Although the court acknowledged this promise at the change of plea hearing, at defendant’s sentencing, the government failed to state the recommendation on the record. Defendant did not object to this failure. The Sixth Circuit held that the government breached the agreement by failing to expressly request that defendant be sentenced at the low end of the guideline range. The breach amounted to reversible error under a plain error standard of review, inasmuch as the breach violated defendant’s constitutional rights such that the fundamental fairness and integrity of the judicial proceeding were compromised. U.S. v. Barnes, 278 F.3d 644 (6th Cir. 2002).
6th Circuit holds that defendant knew consequences of guilty plea. (790) Defendant challenged the district court’s failure to advise him at the plea hearing of the specific amount of loss that would be used to calculate his offense level under the guidelines. The Sixth Circuit found no error. The district court made defendant aware that he could receive a sentence of up to five years’ imprisonment. The judge took pains to explain to defendant how the Sentencing Guidelines are implemented. At one point, when reviewing the substance of the plea agreement, the district court and the government engaged in a lengthy conversation about how the sentencing range would be affected by the amount of loss. Since defendant clearly knew the consequences of his plea, the district court did not violate Rule 11, and defendant entered into his plea knowingly and voluntarily. U.S. v. Hodge, 259 F.3d 549 (6th Cir. 2001).
6th Circuit holds that failure to discuss restitution was harmless error. (790) Defendant argued that his guilty plea was not voluntary because the district court failed to advise him of the particular amount of restitution for which he would be held responsible. The Sixth Circuit held that any error was harmless. Defendant was informed by the court that he could be subject to a fine of $250,000, which was clearly in excess of the $14,369 restitution order and $100 fine actually imposed on the defendant. U.S. v. Hodge, 259 F.3d 549 (6th Cir. 2001).
6th Circuit holds that waiver of appeal barred motion for a new trial. (790) Defendant’s sentencing agreement provided that he waived “any right to raise and or appeal or file any post conviction writs” addressing motion defenses, “objections to the Court’s entry of judgment,” or “any error or any potential error that may have occurred during the course of the trial.” After completing his ten-month sentence, defendant filed a motion for a new trial under Rule 33 based on newly discovered evidence. The Sixth Circuit held that defendant’s waiver of appeal in his sentencing agreement included a motion for a new trial. Defendant knowingly and voluntarily waived his right to object to the court’s entry of judgment against him. The terms of the agreement were drawn broadly to encompass all motions, including those requesting a new trial. Defendant acknowledged at the sentencing hearing that he was waiving “any right to appeal any aspect of the case whatsoever.” However, defendant’s breach of the sentencing agreement (by bringing the motion for a new trial) did not give the district court jurisdiction to reopen defendant’s sentence. U.S. v. Ross, 245 F.3d 577 (6th Cir. 2001).
6th Circuit holds that judge’s erroneous statement did not control over plea agreement waiver. (790) Although defendant waived his right to appeal under a valid plea agreement, at sentencing the judge mistakenly recited the boilerplate notice regarding a defendant’s right to appeal as required by Rule 32(c)(5). Defendant argued that this statement restored his right to appeal his sentence. The Sixth Circuit held that a sentencing court cannot unilaterally restore a right to appeal that has been waived by the defendant under a valid plea agreement. Defendant knowingly and voluntarily pled guilty and waived his right to appeal his sentence. “Nothing in the rules even remotely allows the district court to accept a guilty plea but rewrite the plea agreement, even if the modified agreement is more favorable to the defendant.” The panel expressly declined to adopt the Ninth Circuit’s case of U.S. v. Buchanan, 59 F.3d 914 (9th Cir. 1995), which held that the district court’s oral pronouncement during sentencing that defendant had a right to appeal controlled over the waiver of that right in a written plea agreement. “[A]ny pronouncement from the bench that seeks unilaterally to amend a plea agreement exceeds the court’s authority under the Criminal Rules and is without effect.” U.S. v. Fleming, 239 F.3d 761 (6th Cir. 2001).
6th Circuit says court may only review refusal to depart for unconstitutional motives. (790) The district court ruled that it could only review the government’s refusal to make a § 5K1.1 motion when the defendant asserts an unconstitutional motive. Defendant argued that a court may review the government’s refusal for both unconstitutional motive and bad faith. The Sixth Circuit found that under circuit precedent, when a plea agreement allocates complete discretion to the government to consider whether a substantial assistance motion should be filed, a court may only review the government’s decision for unconstitutional motives. See U.S. v. Benjamin, 138 F.3d 1069 (6th Cir. 1998). Because defendant’s agreement explicitly granted the government “complete discretion” to determine whether it should move for a substantial assistance departure, the court could review the government’s refusal only for unconstitutional motives. Defendant did not allege any impermissible motive, and thus, the district court properly denied his motion. U.S. v. Moore, 225 F.3d 637 (6th Cir. 2000).
6th Circuit holds that full cooperation is not the same as substantial assistance. (790) The district court ruled that defendant had breached the plea agreement because he (1) “failed to get ‘clean,’” and (b) failed “to provide the assistance needed.” The Sixth Circuit reversed, ruling that the district court clearly erred in relying on defendant’s alleged promise to obtain drug treatment. The agreement contained no requirement that defendant obtain drug treatment in order to fulfill his part of the bargain. The agreement stated that it is the “complete and only Plea Agreement” between the parties, and that no additional promises have been made by defendant. In addition, the court applied the wrong standard in determining whether defendant fulfilled his obligations under the agreement. The agreement required defendant to “fully cooperate” with the government. However, the district court characterized defendant’s agreement as a promise to provide “substantial assistance.” There is a difference between substantial assistance and fully cooperation. A defendant might fully cooperate with the government yet fail to provide information that substantially assists it. If that is what happened, then defendant was not in breach of the plea agreement. The court remanded for the district court to determine whether defendant fully cooperated with the government according to the terms of the plea agreement, and not whether he substantially assisted the government. U.S. v. Wells, 211 F.3d 988 (6th Cir. 2000).
6th Circuit upholds refusal to hold hearing on claim that government breached plea agreement. (790) Defendant claimed that the government broke oral promises it made to him while negotiating his plea agreement. The district court denied the motion because, among other things, the plea agreement contained an integration clause that restricted its terms to those written within its four corners. The Sixth Circuit upheld the district court’s refusal to hold a hearing on defendant’s claim that the government breached the plea agreement. An integration clause normally prevents a criminal defendant who has entered into a plea agreement from asserting that the government made oral promises to him not contained in the plea agreement itself. There were no circumstances justifying a departure from this rule. Unlike Peavy v. U.S., 31 F.3d 1341 (6th Cir. 1994), defendant did not file an affidavit attesting to a side agreement with the government. In addition, the government denied that an oral agreement existed. Give this denial, the integration clause, and defendant’s failure to file an affidavit, the district court correctly found that no hearing was necessary. U.S. v. Hunt, 205 F.3d 931 (6th Cir. 2000).
6th Circuit requires cause and prejudice to excuse failure to raise government’s breach of plea agreement. (790) In a § 2255 motion, defendant claimed that the government breached the terms of his plea agreement by failing to file a § 5K1.1 motion for a substantial assistance departure. Defendant did not raise this claim either at sentencing or on direct appeal. He argued that under U.S. v. De La Fuente, 8 F.3d 1333 (9th Cir. 1993), the Frady cause and prejudice standard does not apply to a claim that the government breached the plea agreement. The Sixth Circuit rejected De La Fuente; Supreme Court decisions in the past decade suggest that the cause and prejudice test should be uniformly applied to all procedural defaults. See, e.g. Keeney v. Tamayo-Reyes, 504 U.S. 1, 7-8 (1992). Thus, defendant was required to demonstrate cause and prejudice to excuse his procedural default. The only arguable cause for the default would be a claim of ineffective assistance of counsel, but defendant did not raise such a claim. Defendant’s conclusory statement in his brief in support of his § 2255 motion was insufficient to raise the issue of ineffective assistance. Defendant also did not raise this issue on appeal of the district court’s denial of the § 2255 motion. Although the government failed to raise defendant’s default, the Sixth Circuit found it was justified to raise this issue sua sponte. Elzy v. U.S., 205 F.3d 882 (6th Cir. 2000).
6th Circuit says defendant did not make threshold showing of unconstitutional motive. (790) Defendant claimed that the government frustrated his ability to cooperate and thus qualify for a downward departure. He further alleged that the government acted in bad faith. The Sixth Circuit rejected the argument since he raised the claim for the first time on appeal. Further, bad faith is not the standard of review in a downward departure case. A hearing is not needed unless the government’s refusal to recommend a downward departure is based on an unconstitutional motive. Defendant did not make a threshold showing of an unconstitutional motive. Indeed, the district court properly found the government fully complied with the terms of the plea agreement. The plain language of the plea agreement made clear that the government did not have any obligation to release defendant on bond, interview defendant any set number of times, or administer a lie detector test. A review of the plea agreement confirmed this. The government interviewed defendant twice for his cooperation, and when it concluded that substantial assistance was not forthcoming, properly declined to recommend a departure. U.S. v. Hunt, 205 F.3d 931 (6th Cir. 2000).
6th Circuit holds that consecutive § 924(c) sentence did not violate plea agreement. (790) Defendant pled guilty under a Rule 11 agreement to violations of RICO and 18 U.S.C. § 924(c). An addendum stated that defendant’s sentence would be concurrent to a 19-year state sentence. However, the plea agreement erroneously referenced only the RICO count. At sentencing, the parties orally amended the agreement to include the § 924(c) count, and defendant acknowledged that the § 924(c) charge carried a five-year consecutive sentence. The court then ordered the § 924(c) sentence to run consecutively to both the RICO sentence and defendant’s state sentence. On appeal, defendant argued that the agreement required his § 924(c) sentence to run concurrently with his state sentence. The Sixth Circuit found that the sentence imposed was consistent with defendant’s understanding of the plea agreement. In U.S. v. Gonzales, 520 U.S. 1 (1997), the Supreme Court held that a § 924(c) sentence must run consecutively to both federal and state sentences. Although this case was issued after defendant’s plea hearing, Sixth Circuit jurisprudence was consistent with Gonzales. Because it was the law of the circuit that a § 924(c) sentence could not run concurrently with any sentence, it must be assumed that defendant and his counsel understood that the sentence would run consecutively to both state and federal sentences. The judge did not implicitly reject the terms of the plea agreement, which would have given defendant the right to withdraw his plea. U.S. v. Carr, 170 F.3d 572 (6th Cir. 1999).
6th Circuit upholds denying motion to withdraw guilty plea. (790) Defendant challenged the district court’s denial of his motion to withdraw his guilty plea. He claimed that he only spent 1 1/2 hours with his attorney discussing the plea agreement before he pled guilty. He further claimed that he would not have entered the plea agreement if he had known that a detailed statement of facts was not required. The Sixth Circuit upheld the denial of the motion to withdraw the plea. Defendant waited more than four months before filing a motion to withdraw his plea. He offered no legitimate reason why he could not have filed his motion at an earlier date. He was concerned about the statement of facts on the day he pled guilty. Rather than expressing these concerns, defendant told the court that the agreed-upon statement of facts was an accurate description of his crime. The record also showed that defendant, his attorney and the government had substantial discussions for over a year and a half concerning the plea agreement. The motion to withdraw was merely defendant’s attempt to obtain a better bargaining position. U.S. v. Pluta, 144 F.3d 968 (6th Cir. 1998).
6th Circuit says “probable cause” that defendant breached agreement did not relieve government of § 5K1.1 obligation. (790) The plea agreement said the government would move for a substantial assistance departure, but if defendant committed any crimes while he was cooperating, or otherwise violated the agreement, the government would not be bound by its promise. At sentencing, the government refused to make a § 5K1.1 motion because it believed that defendant had been involved in a homicide. The district court did not require the government to make the § 5K1.1 motion, finding that the government had probable cause to believe that defendant had breached the plea agreement by committing a crime. The Sixth Circuit held that the judge erred in allowing the government to decline to make a § 5K1.1 motion simply because it had “probable cause” to believe that defendant breached the plea agreement. The government must establish the defendant’s breach by a preponderance of the evidence. The district court here found that while the government had “at least probable cause” to believe that defendant breached the plea agreement, this did not rise to a preponderance of the evidence. U.S. v. Benjamin, 138 F.3d 1069 (6th Cir. 1998).
6th Circuit refuses to permit plea withdrawal based on misunderstanding of guideline range. (790) Defendant pled guilty in November 1995 to drug charges. In June 1996, he moved to withdraw his guilty plea based on his surprise at the harshness of guidelines as applied to him. The Sixth Circuit held that defendant’s miscalculation of his guideline range did not present a fair and just reason to permit a plea withdrawal. Given the more than six months between the guilty plea and the motion to withdraw, the absence of a reason for not moving earlier to withdraw, the failure to assert innocence, and defendant’s familiarity with the justice system, the district court did not err in denying the motion. U.S. v. Gibson, 135 F.3d 1124 (6th Cir. 1998).
6th Circuit holds that plea agreement did not require substantial assistance motion. (790) Defendant argued that his plea agreement required the government to move for a § 5K1.1 departure. The Sixth Circuit disagreed, since the agreement stated that the government retained complete discretion both in determining whether a § 5K1.1 motion was warranted and in determining the extent of any departure requested. U.S. v. Epley, 52 F.3d 571 (6th Cir. 1995).
6th Circuit remands for hearing on whether oral plea agreement required Rule 35 motion. (790) Two years after sentencing, defendant moved to withdraw his plea, alleging that FBI agents told him that if he cooperated in ongoing investigations, the government would file a Rule 35 motion to reduce his sentence, and that he would serve only two years. The district court summarily dismissed the motion, but the 6th Circuit remanded for an evidentiary hearing. The government acknowledged the existence of an oral plea agreement that went beyond the terms of defendant’s written agreement. Contrary to Rule 11(d), the judge never asked defendant whether there were any promises apart from the written plea. Given this record, the government was required to present evidence in support of its motion for summary dismissal. The government’s unverified responses were plainly inadequate. On remand, if defendant was successful, his remedy would be to withdraw his plea. The government could not now be required to file a delayed Rule 35 motion. Judge Batchelder dissented. Peavy v. U.S., 31 F.3d 1341 (6th Cir. 1994).
6th Circuit denies plea withdrawal even though defendant was not told of required consecutive sentence. (790) Defendant pled guilty to carrying a firearm in relation to a drug trafficking offense. He argued that he should have been permitted to withdraw his plea because the district court told him that it could impose a sentence concurrent to his state sentence, when in fact the statute required a consecutive sentence. The 6th Circuit found that any error was harmless, because defendant knew before he pled guilty that the mandatory sentence would not run concurrently to his state sentence. Thus, no substantial right was affected. U.S. v. Ospina, 18 F.3d 1332 (6th Cir. 1994).
6th Circuit upholds government’s refusal to move for departure absent allegation of improper motives. (790) In a motion to vacate under 28 U.S.C. section 2255, petitioner argued that the government breached his plea agreement by failing to request a downward departure based on his substantial assistance. The 6th Circuit upheld the denial of petitioner’s request for relief. He failed to identify any unconstitutional motive for the government’s refusal to make the motion. He also did not assert that the government was specifically required, as part of its plea bargain, to make the motion. The government’s stated reason for refusing to make the motion in the district court (defendant’s information did not amount to “substantial assistance”) was a rational and acceptable reason for the government to refuse to request a departure. Sullivan v. U.S., 11 F.3d 573 (6th Cir. 1993).
6th Circuit holds that defendant waived possible violation of Rule 11. (790) On appeal from the district court’s revocation of supervised release, defendant argued that when the district court accepted his guilty plea to the underlying offense, it violated Fed. R. Crim. P. 11(c)(1) by failing to advise him of the consequences of supervised release. The 6th Circuit held that defendant waived this argument by not raising it in the district court or on direct criminal appeal. U.S. v. Wright, 2 F.3d 175 (6th Cir. 1993).
6th Circuit remands where government failed to prove defendant breached plea agreement. (790) The district court granted the government’s motion to withdraw from a plea agreement because defendant breached the agreement by lying. However, the only evidence was a government agent’s testimony that he believed defendant had lied about certain matters. The 6th Circuit remanded to determine whether defendant violated the plea agreement. The district court mistakenly believed that it could grant the government’s motion to withdraw at the court’s discretion, or based upon the good faith belief of government agents. The court’s misstatement of the law during the hearing was likely a factor in the government’s failure to offer evidence of a breach. U.S. v. Crowell, 997 F.2d 146 (6th Cir. 1993).
6th Circuit says Rule 32(d) provides no jurisdiction to withdraw plea after sentencing. (790) After defendant was sentenced, he filed a motion to vacate his guilty plea pursuant to both Fed. R. Crim. P. 32(d) and 28 U.S.C. section 2255. The 6th Circuit held that because the request was made after his sentence was imposed, Rule 32(d) did not provide a vehicle to challenge the plea. However, because defendant’s motion to vacate his plea was also brought under 28 U.S.C. section 2255, the court considered his argument under that provision. U.S. v. Todaro, 982 F.2d 1025 (6th Cir. 1993).
6th Circuit affirms denial of motion to vacate plea for attorney’s incorrect advice about sentence. (790) The district court denied defendant’s motion to vacate his guilty plea under 28 U.S.C. section 2255 despite his allegation that his attorney incorrectly advised him he would only face a sentence of probation. The 6th Circuit affirmed, holding the district court did not abuse its discretion in failing to hold an evidentiary hearing on his motion. The promise that defendant claimed his attorney made was refuted by the record. Defendant was given the correct sentencing information by the judge. Defendant expressly denied the existence of any other representations or promises. Moreover, the district court held an immediate hearing on the record as soon as defendant challenged his plea and sentence. Defendant was given ample opportunity to address the court regarding his contentions, and his claims were unequivocally refuted by both his own attorney and his co-defendant’s attorney. U.S. v. Todaro, 982 F.2d 1025 (6th Cir. 1993).
6th Circuit permits defendant to withdraw plea where trial judge participated in plea negotiations. (790) The 6th Circuit held that defendant should be allowed to withdraw his guilty plea because the district court participated in plea negotiations, in violation of Fed. R. Crim. P. 11(e)(1). Prior to trial, the judge arranged a conference call between himself, the prosecutor and defense counsel. The purpose of the call was to facilitate a plea by resolving a dispute about the sentencing guidelines. Although the judge stated that he would not punish defendant for going to trial, the purpose of the conversation was to facilitate a plea. By intervening, the judge communicated to defendant that he desired a plea, and raised the possibility that a refusal to accept the judge’s preferred position would be punished. Moreover, the judge’s predisposition to find defendant guilty was apparent from the record. The judge commented that he did not see what defense defendant had, and that he was not surprised that defendant’s investigator was unable to find any alibi witnesses. These comments were coercive. U.S. v. Barrett, 982 F.2d 193 (6th Cir. 1992).
6th Circuit says government waived claim that plea agreement barred downward departure. (790) The government argued that the downward departure was impermissible under Fed. R. Crim. P. 11(e)(3), since the parties had not agreed to such a departure and the written plea agreement by its terms did not allow the district court to modify the agreement. The 6th Circuit held that the government waived its objection to the court’s consideration of a departure when at sentencing, it failed to object to defense counsel’s request to present evidence in support of a downward departure. By failing to object at the crucial moment when the trial court inquired as to the terms of the agreement, the government waived its claim. Moreover, the plea agreement contained an ambiguity, and it was not unreasonable for the sentencing court to assume from the government’s silence that it had agreed not to oppose defendant’s request for a downward departure. Senior Judge Wellford dissented. U.S. v. Johnson, 979 F.2d 396 (6th Cir. 1992).
6th Circuit rejects claim that there was a separate agreement outside the written plea agreement. (790) The indictment charged defendant with a conspiracy that lasted two years, but he eventually pled to a one-count superceding indictment which limited the conspiracy to 11 days. Defendant argued that the purpose of this was to limit the quantity of drugs which the court could consider. The 6th Circuit rejected the claim that there was a separate agreement outside the written plea agreement. “[A]bsent extraordinary circumstances, .ÿ.ÿ. a defendant’s plea agreement consists of the terms revealed in open court.” The district court followed the procedures outlined in Rule 11. When questioned by the court about the plea agreement, neither defendant nor his attorney advised the court of the additional terms in the plea agreement. U.S. v. Herrera, 928 F.2d 769 (6th Cir. 1991).
6th Circuit finds prosecutor’s refusal to move for downward departure did not entitle defendant to withdraw plea. (790) The plea agreement provided that if the defendant’s information and testimony merited it, the government would move for a downward departure. But after defendant testified, the government advised him that it would not seek a downward departure because he failed to identify two co-defendants at trial and his testimony failed to include most of the facts he had earlier disclosed. The 6th Circuit found that the government’s decision did not entitle defendant to withdraw his plea. Defendant did not attempt to withdraw his plea until after his testimony led the government to announce its intention. He did not maintain his innocence. Defendant was familiar with the criminal justice system and admitted his guilt. He did not fulfill his obligations under the plea agreement and could not now profit from that breach. U.S. v. Head, 927 F.2d 1361 (6th Cir. 1991).
6th Circuit finds that prosecutor did not breach plea agreement by supplying court with guideline calculation. (790) Defendant argued that the government breached his plea agreement by recommending a sentence and by failing to disclose to the court the extent of defendant’s cooperation with the government. At the time of the plea, the prosecutor had advised the court that defendant was pleading with no sentencing recommendation. However, the prosecutor explained that the government computed the base offense level at 36, resulting in a sentencing range of 188 to 235 months, and that defendant would likely object to the offense level. The 6th Circuit found that the prosecutor’s conduct was not a breach of the plea agreement. Nevertheless, since the record did not reflect the extent to which defendant cooperated with the government and the detailing of such cooperation by the prosecutor, the case was remanded for a factual finding. U.S. v. Edgecomb, 910 F.2d 1309 (6th Cir. 1990).
6th Circuit rules that if court rejects proposed sentencing agreement, defendant must be allowed to withdraw his plea. (790) The plea agreement stated that only 99 grams of cocaine were involved, for an offense level of 16. The presentence report found that there were over 100 grams, for an offense level of 18. The district court rejected the plea agreement and sentenced the defendant according to 102 grams. The 6th Circuit found that the plea was properly characterized as a specific sentence agreement under Fed. R. Crim. P. 11(e)(1)(C). Therefore the district court was bound to defer acceptance of the plea agreement until it had an opportunity to consider the presentence report. The court also noted that under the sentencing guidelines, the district court is “not bound by stipulations of fact.” Otherwise the parties could by stipulation resolve crucial, disputed factual issues and thereby undercut the application of the guidelines. Thus the district court properly rejected the agreement with its incorrect stipulation. However, it was error to impose sentence without affording defendant an opportunity to withdraw his guilty plea. U.S. v. Kemper, 908 F.2d 33 (6th Cir. 1990).
6th Circuit finds that defendant did not rely on counsel’s post-plea advice that he would be eligible for parole after serving one-third of sentence. (790) In a letter mailed thirteen days after he pled guilty, defendant’s counsel incorrectly advised him that he would be eligible for parole in one-third the time he received for a sentence. The 6th Circuit acknowledged that if he had pled guilty solely in reliance on this advice, “a reversal for ineffective assistance of counsel would be in order.” However, during the plea proceedings, the defendant had been informed of the maximum sentence, and that he would be sentenced under the guidelines. Moreover, he chose not to withdraw his plea during or following the sentencing proceedings. The court found no reliance on the erroneous advice. U.S. v. Hanley, 906 F.2d 1116 (6th Cir. 1990).
6th Circuit upholds plea to harboring charge even though defendant was unaware that sentence would be based on amount of drugs of person he was hiding. (790) Section 2X3.1 of the guidelines provides that the sentence for harboring a fugitive under 18 U.S.C. § 1071 is determined by taking the base offense level of the underlying offense and reducing it by 6 levels. Defendant claimed that he did not enter his plea “knowingly and intelligently” because he was unaware that his sentence would be based on the amount of drugs involved in the conspiracy charge of his son whom he was hiding. He filed a motion to withdraw his plea after discovering the amount of cocaine involved in his son’s conspiracy charge. The 6th Circuit found no abuse of discretion in refusing to permit withdrawal of the plea, ruling that “[a]lthough he may have been unaware of the specific result once the guideline was applied to him, he was aware of the consequences of entering into the plea agreement.” U.S. v. Stephens, 906 F.2d 251 (6th Cir. 1990).
6th Circuit allows withdrawal of plea where base offense level was higher than provided in plea. (790) Defendant pled guilty to distributing marijuana. The plea agreement allowed defendant to withdraw his plea if the district court departed from the agreed base offense level of 20 or departed from the otherwise applicable criminal history category. Based on an addendum indicating that defendant distributed drugs on other occasions, the district court increased defendant’s base offense level, although the sentence still fell within the range stated in the plea agreement. The 6th Circuit reversed, holding that defendant was entitled to specific performance of his plea bargain. Even though the sentence fell within the appropriate range, the defendant had to be sentenced by the agreed method or be allowed to withdraw his plea. U.S. v. Mandell, 905 F.2d 970 (6th Cir. 1990).
6th Circuit allows government to argue against defendant’s acceptance of responsibility despite plea agreement. (790) Defendant argued that the government breached the plea agreement by objecting to a reduction for acceptance of responsibility and presenting facts in support of their objection. The 6th Circuit disagreed, noting that the government’s objection to the pre-sentence report contained the same facts presented at sentencing and that the defendant knew the government disputed the issue of acceptance of responsibility. The plea agreement did not preclude introduction of this evidence, and the government properly introduced the evidence in response to the sentencing judge’s remark that the parties agreed on facts underlying the recommended sentence. U.S. v. Barrett, 890 F.2d 855 (6th Cir. 1989), abrogation on other grounds recognized by U.S. v. Moore, 225 F.3d 637 (6th Cir. 2000).
6th Circuit rules plea bargain promising no additional charges did not prohibit government from arguing uncharged quantities of drugs at sentencing. (790) Defendant argued that the government breached its plea agreement by arguing that he had possessed a greater quantity of drugs than that specified in the count to which he pleaded guilty. The 6th Circuit affirmed the district court’s denial of a motion to set aside the plea. Section 1B1.8 explicitly recognizes that plea agreements may exclude from presentence reports information obtained in violation of the plea agreement. However, the defendant did not bargain to have information excluded from his presentence report; he bargained for immunity from further prosecution in the district. Thus, the government lived up to its duties. The court nevertheless cautioned the government to avoid trickery in its plea bargain practices so that defendant’s actual expectations will be fulfilled. U.S. v. Ykema, 887 F.2d 697 (6th Cir. 1989).
7th Circuit says defendants’ breach of plea agreement did not eliminate their appeal waivers. (790) In 2000, defendants pled guilty to conspiracy charges, but prior to sentencing, absconded. Following their arrest 12 years later, defendants also pled guilty to failure to appear at sentencing. Defendants argued that the appeal waivers in their 2000 plea agreement were unenforceable because the government breached their plea agreements by failing to recommend sentences at the bottom of the applicable guideline range. The government contended that it was relieved of this obligation by defendants’ absconding in breach of the plea agreement. Defendants contended that if the government was relieved of its obligation to recommend a lesser sentence, then they were likewise relieved of their appeal waivers. The Seventh Circuit disagreed. The fact that a party has breached a portion of a contract does not automatically result in the discharge of that party’s remaining obligations. Instead, the rule is that where one party commits a material breach, the non-breaching party may elect to terminate the entire agreement or seek to enforce the remainder of the contract. Here, the government elected to enforce the remaining provisions of the plea agreements, including the appeal waivers. U.S. v. Hallahan, 744 F.3d 497 (7th Cir. 2014).
7th Circuit finds no breach of plea agreement despite government’s mention of criminal history. (790) Defendant pled guilty to fraud charges pursuant to a plea agreement in which the parties jointly recommended a sentence of five years. Although defendant’s guideline range was 37-46 months, the government filed a sentencing memo explaining that an upward variance was warranted because of defendant’s extensive criminal history and likelihood of recidivism. Defendant argued that the government breached the plea agreement by referencing his extensive criminal history. The Seventh Circuit disagreed. The parties’ joint recommendation of 60 months was an upward departure that the government had to justify. The primary means for the government to justify the upward departure was to reference defendant’s criminal history. Moreover, the government honored its obligation to recommend a 60-month sentence, and never advocated a higher sentence. U.S. v. Rachuy, 743 F.3d 205 (7th Cir. 2014).
7th Circuit rules that defendant who fled country breached plea agreement. (790) Pursuant to a plea agreement, defendant pled guilty in 2007 to drug charges, but he fled to Mexico before his sentencing. The government finally tracked him down and extradited him. He was sentenced in 2012 to 181 months. Defendant argued that the government breached the plea agreement by (1) advocating a base offense level higher than the parties had agreed in the plea agreement, and (2) recommending a sentence in the middle of the guideline range rather than at the bottom. The Seventh Circuit held that it was defendant, not the government, who materially breached the conditions of his release and an implied term of his plea agreement by fleeing the country rather than showing up for sentencing. Defendant’s breach permitted the government to treat the plea agreement as having been rescinded. U.S. v. Munoz, 718 F.3d 726 (7th Cir. 2013).
7th Circuit finds defendant failed to show sufficient reason to withdraw plea. (790) Defendant pled guilty to drug charges. He argued that he should have been allowed to withdraw his guilty plea because he disagreed with the amount of crack cocaine attributed to him, his status as a career offender, and his failure to receive an acceptance of responsibility reduction. The Seventh Circuit held that defendant was not entitled to withdraw his guilty plea. He pled guilty without a plea agreement, and therefore had no guarantees from the government regarding any of these points. Although defendant argued that he had a reasonable expectation of not being classified as a career offender based on the information filed by the government under 21 U.S.C. § 851, the notice requirement of § 851(a)(1) does not apply to charges used to establish career criminal status. Defendant presented no legitimate reason to withdraw his plea. U.S. v. Redmond, 667 F.3d 863 (7th Cir. 2012).
7th Circuit says use of tax loss outside charged years did not breach plea agreement. (790) Defendant pled guilty to failure to file income tax returns or to pay taxes from 2001 to 2003. He argued that the government breached his plea agreement when it assented to the PSR’s tax loss calculations, which included as relevant conduct losses from the years 1993 through 2001. He claimed that the plea agreement bound the government to limit its recommendation to losses during the charged period only. The Seventh Circuit found no breach, ruling that defendant misconstrued the language of the agreement. The agreement acknowledged that the government could prove that the tax loss from the charged period was $425,766. There was no promise by the government to limit its relevant conduct recommendations to those amounts, nor was there anything about the uncharged years. Moreover, the government adequately proved the tax loss. The PSR identified a pending civil case by its case number and correctly recounted the amount of tax sought by the government for the earlier years. The information in the PSR was sufficiently reliable to support the government’s position at sentencing. U.S. v. O’Doherty, 643 F.3d 209 (7th Cir. 2011).
7th Circuit rules prosecutor’s mistaken recommendation of sentence at top of guideline range breached plea agreement. (790) In exchange for his defendant’s guilty plea, the government agreed to recommend a sentence at the bottom of defendant’s 18-24 sentencing months. At sentencing, however, the prosecutor initially recommended that defendant be sentenced at the top of the range. When defense counsel objected, the prosecutor admitted his mistake and continued: “I think, Judge, the point is that significant sentence needs to be meted out so that it is aversive enough to keep the Defendant from coming back. The reality of whether it’s 18 months or greater, that is still a significant period of time. And we’d ask the Court to impose that low end of the guideline range, not greater than is necessary to achieve the result. I suppose a larger sentence could be appropriate, but that is the least amount that is necessary to achieve the desired result.” The Seventh Circuit held that the prosecutor’s initial mistaken recommendation constituted a serious breach of the plea agreement, and remanded for resentencing. The prosecutor may have been able to correct the error by making an unequivocal retraction, but he undermined his correction by stating that a larger sentence “could be appropriate.” U.S. v. Diaz-Jimenez, 622 F.3d 692 (7th Cir. 2010).
7th Circuit upholds waiver of appeal where defendant was the party who breached plea agreement. (790) Defendant argued that the government breached the terms of his plea agreement by refusing to recommend a reduction for acceptance of responsibility and by recommending a two-level increase for obstruction of justice. The government argued that defendant waived his right to appeal under the plea agreement. The Seventh Circuit upheld the waiver of appeal. It was defendant who first broke the terms of the plea agreement when he perjured himself at a co-conspirator’s trial and obstructed justice. The fact that the prosecution declined to recommend a reduction following defendant’s perjury in his co-defendant’s trial did not negate the entire plea agreement nor the waiver provision. U.S. v. Quintero, 618 F.3d 746 (7th Cir. 2010).
7th Circuit upholds appeal waiver despite misunderstanding about safety valve’s applicability. (790) Defendant pleaded guilty to a drug-trafficking offense that carried a mandatory minimum 20-year sentence. The plea agreement contained a waiver of defendant’s right to appeal, and when he entered the plea, he stated that he understood the effect of the appeal waiver. When defendant entered the plea agreement, he and the government both understood that he would be eligible for the safety valve, 18 U.S.C. § 3553(f), which would have allowed the district court to impose a sentence below the mandatory minimum. The PSR determined, however, that defendant was not eligible for safety valve treatment. The district court accepted that conclusion and sentenced defendant to the mandatory minimum of 20 years. Defendant appealed, arguing that the appeal waiver should not be enforced because he and the government mistakenly believed that he would be eligible for the safety valve. The Seventh Circuit rejected defendant’s claim that the agreement rested on a mutual mistake as to defendant’s safety valve eligibility, enforced the appeal waiver, and dismissed defendant’s appeal. U.S. v. Chapa, 602 F.3d 865 (7th Cir. 2010).
7th Circuit holds that government breached proffer agreement. (790) Paragraph 5 of defendant’s proffer agreement provided that the government would not use any statements or other information provided by defendant against him, but that the government would “be free to provide any such information” to the court if defendant pled guilty or was convicted. Paragraph 6 provided that “[N]o self-incriminating information given by [defendant] will be used to enhance the Offense Level against [defendant] except as provided in [U.S.S.G. §1B1.8].” The probation department recommended in the PSR that 197 kilograms of cocaine be used to increase defendant’s offense level as relevant conduct. Defendant’s proffer was the only evidence of the 197 kilograms. The Seventh Circuit ruled that the government breached the plea agreement by submitting to the district court protected statements made by defendant. By their very nature, paragraphs 5 and 6 were almost irreconcilable. The government could provide defendant’s proffer statements to the court, but it could not per se recommend that the court increase defendant’s offense level based on that information. U.S. v. Farmer, 543 F.3d 363 (7th Cir. 2008).
7th Circuit says government breached plea agreement by commenting on “appalling” criminal history. (790) Defendant’s plea agreement stated that the government would advise the court of information “relevant to sentencing, including criminal activity engaged in by the defendant….” However, the government also agreed not to take any position concerning where within the guidelines range defendant’s sentence should fall, and agreed not to move for an upward departure. At sentencing, the government stated that defendant’s criminal history was “appalling,” that his purported contrition was “disingenuous,” and then discussed in detail the violent nature of the current offense. The prosecutor also noted that that at the time the plea agreement the government believed defendant’s criminal history was III rather than II, and stated that “technically, I could make an upward departure [argument.]” The Seventh Circuit held that the government breached the plea agreement through its arguments relating to the facts of defendant’s crime and the seriousness of his criminal history. The government volunteered highly negative characterizations of defendant’s criminal history and demeanor. Such characterizations were not “information” provided by the government. There is no principled distinction between the government actually moving for an upward departure an stating that it “technically” could move for such a departure and then adding arguments that would support such a departure. U.S. v. Vaval, 404 F.3d 144 (2d Cir. 2005).
7th Circuit upholds denial of motion to withdraw plea in light of thorough Rule 11 colloquy. (790) Defendant’s plea agreement set out the government’s belief that his sentencing range would be 262-327 months, and defendant’s belief that his sentencing range would be 210-262 months. Defendant acknowledged that neither of these numbers were binding on the district court should it accept his guilty plea and plea agreement. Defendant also waived his right to appeal in the plea agreement. The day after a “thorough” Rule 11 colloquy, defendant insisted that he wanted to withdraw his guilty plea and sever his relationship with his attorney. He claimed that he did not understand the plea bargain and that he thought he was pleading guilty in exchange for a sentence of 10 years. The judge denied his requests without holding an evidentiary hearing, and imposed a 360 month sentence. The Seventh Circuit affirmed. Defendant conceded that the Rule 11 colloquy was thorough and fair. He asserted only that he did not really understand the plea bargain and guilty plea, and that he was duped by his attorney into believing he had made a deal for 10 years. These assertions did not entitle defendant to withdraw his plea or even entitle him to an evidentiary hearing. Defendant’s motion to withdraw his plea contradicted his own statements at the plea hearing. Further, defendant’s waiver of appeal precluded the court from considering his challenge to his sentence. U.S. v. Jones, 381 F.3d 615 (7th Cir. 2004).
7th Circuit denies motion to withdraw plea after government discovered defendant entered plea using false identity. (790) Defendant entered into a plea agreement under a false name. He was hoping for a sentence of 10 years or less, a calculation based on the fact that the person whose name he used had no criminal record. Defendant actually had a number of prior convictions, which was discovered prior to sentencing. Defendant qualified as a career offender, and received a sentence of 360 months. The Seventh Circuit upheld the district court’s refusal to permit defendant to withdraw his guilty plea. Defendant was informed twice during his plea hearing that he was facing at least ten years and that the possibility of life imprisonment existed. Defendant was informed about the dire possibilities, and was the only one who knew that he was not who he seemed to be. He knew it was to his advantage not to have his true identity and criminal record revealed. Warnings about a possible life sentence would have had a special meaning to him. Defendant gambled and lost. U.S. v. Howard, 341 F.3d 620 (7th Cir. 2003).
7th Circuit says refusal to take part in ride-along was substantial breach of plea agreement. (790) Defendant’s plea agreement provided that he would cooperate fully with the investigation of his associates, and in return the government would recommend a departure under § 5K1.1. When defendant refused to accompany authorities on a trip to identify the residence of a possible co-conspirator, however, the government asserted that defendant had breached the agreement. The district court, without making a formal determination that defendant’s actions amounted to a substantial breach, declared the plea agreement to be null and void and reinstated a plea of not guilty. The Seventh Circuit agreed that defendant’s refusal to take part in the ride-along amounted to a substantial breach of his pea agreement. The government conceded that the district court did not meet its obligations under U.S. v. Lezine, 166 F.3d 895 (7th Cir. 1999) by failing to enter a formal finding that defendant’s refusal to participate in the ride-along amounted to a substantial breach of the plea agreement. However, the court’s failure to make such a finding was harmless error. U.S. v. Kelly, 337 F.3d 897 (7th Cir. 2003).
7th Circuit holds that defendant who stopped cooperating was not entitled to § 5K1.1 motion. (790) Defendant argued that his sentence should be vacated because the government failed to make a § 5K1.1 motion as it agreed to do in his plea agreement if defendant cooperated fully in this and other investigations. While defendant conceded that his cooperation stopped shortly after his co-defendants’ trial, he claimed he was nonetheless entitled to the benefit from his earlier assistance. The Seventh Circuit held that defendant was not entitled to the § 5K1.1 because he did not comply with the terms of his plea agreement. The agreement stated that defendant must “willfully and truthfully cooperate with the government in any matter in which he is called upon to cooperate.” Further, defendant was required to “cooperate fully and truthfully in identifying and forfeiting tainted assets subject to forfeiture, regardless where they may have been transferred or hidden.” By failing to provide full cooperation, defendant violated the terms of the plea agreement and relieved the government of its obligation to move for a downward departure. U.S. v. Sowemimo, 335 F.3d 567 (7th Cir. 2003).
7th Circuit holds denial of motion to withdraw guilty plea was not abuse of discretion. (790) Defendant argued that he should have been allowed to withdraw his guilty plea because he did not know at that time that he was a career offender. At the time he pled guilty, he was asked the appropriate questions to determine whether his plea was voluntary. He was clearly told that his sentence would be governed by the guidelines. The judge also warned him that he could be sentenced above the guideline range. In fact, he was told he could be sentenced up to 40 years’ imprisonment. Despite that warning, he said that when he pled guilty he believed that his actual sentencing range was 60-63 months. At sentencing, it became clear that he would be sentenced as a career offender, bringing his sentencing range to 188-235 months. It was at this point he decided he wanted to withdraw his guilty plea. The judge found that defendant had been warned that his sentence had not yet been calculated and would depend on guideline calculations. The Seventh Circuit found no abuse of discretion in the court’s denial of defendant’s motion to withdraw his plea. Defendant’s 188-month sentence was well below what he was told he could receive. It was also well below what defendant could receive after trial, a trial at which even defendant conceded he would almost certainly have been found guilty. U.S. v. Dumes, 313 F.3d 372 (7th Cir. 2002).
7th Circuit says defendant breached agreement by indicating his willingness to commit perjury. (790) Defendant pled guilty under an agreement in which he agreed to provide complete and truthful information and testimony. However, during a debriefing, the government found defendant uncooperative and troublesome. Defendant then wrote a letter to the government, saying that “whatever you want me to say on the stan[d], just tell me sir and I will do it.” The government them moved to withdraw from the plea agreement, claiming that defendant had breached it because his letter revealed his willingness to commit perjury. Defendant argued on appeal that he should not have been sentenced without the substantial assistance motion. The Seventh Circuit held that the government was justified in refusing to make the substantial assistance motion. Defendant seriously undermined his value as a witness by writing that he would testify to whatever the government wanted him to say. U.S. v. Dumes, 313 F.3d 372 (7th Cir. 2002).
7th Circuit finds no error in failure to enforce government’s alleged promise of leniency. (790) Defendant’s wife testified that one agent promised leniency for defendant if he cooperated with law enforcement. She also testified that the other agent promised a sentence of one to three years in a state facility in exchange for defendant’s cooperation. When federal prosecutors later offered defendant a plea agreement, his wife advised him to reject it because it did not meet the terms of the agreement she alleged she reached with the two agents. After initially going to trial, defendant decided to plead guilty, and was sentenced to 188 months’ imprisonment. The court found that there was no contract or agreement between defendant and the government, and that there was simply a misunderstanding between defendant, his wife, and law enforcement officers. The Seventh Circuit found no error. Defendant argued, in essence, that he provided substantial assistance and the government breached its agreement to move for a departure on the basis of that assistance. However, the district court found as a factual matter that there was no such agreement and that defendant had not assisted the government in any significant way. The court lacked authority to depart on the basis of substantial assistance absent a motion from the government. U.S. v. Bosque, 312 F.3d 313 (7th Cir. 2002).
7th Circuit upholds waiver of appeal despite defendant’s claim of prosecutor’s breach of agreement. (790) Defendant’s plea agreement provided that, in exchange for concessions by the government, defendant waived his rights to appeal and to seek collateral relief under 28 U.S.C. § 2255. However, because the judge found it a close question as to which version of the guidelines was applicable, the prosecutor agreed to modify the waiver so that defendant could present this issue for appellate review. Defendant abused the opportunity by filing an appellate brief presenting eight issues rather than the agreed single issue. Defendant argued that a breach of the plea agreement by the prosecutor cancelled his waiver. The Seventh Circuit rejected this argument. Defendant had already argued to the district judge that the prosecutor broke his promise by failing to recommend an acceptance of responsibility reduction, and the judge rejected the argument. So, what defendant apparently was arguing was not that a breach allows appeal, but a claim of breach allows appeal. This is clearly not the case. In addition, a prosecutor’s failure to keep one part of a plea agreement usually leads to a judicial order of specific performance; it does not relieve the defendant of all promises. A waiver stands or falls with the rest of the bargain. Defendant did not ask the district court to set aside his plea, and on appeal he did not seek that relief. He wanted the benefits of the agreement absent one detriment, an outcome to which he was not entitled. U.S. v. Whitlow, 287 F.3d 638 (7th Cir. 2002).
7th Circuit finds no vindictiveness from higher sentence on remand where agreement’s restraints were lifted. (790) Defendant pled guilty to conspiracy under a 1993 plea agreement. He escaped before sentencing, was apprehended in Mexico, and extradited to the U.S. He then pled guilty to escape. He also signed an addendum to his 1993 agreement providing that, in exchange for his guilty plea to escape, the government would recommend a sentence on the conspiracy charge at the low end of the applicable range, and defendant would withdraw all objections to the PSR. The district court sentenced defendant to 220 months on the conspiracy charge. Later, the government was forced to dismiss the escape charge. Defendant successfully moved to vacate the conspiracy sentence, charging that his attorney had been ineffective in advising him to sign the addendum. At resentencing, defendant raised numerous objections to the PSR. The district court rejected all of his objections, and sentenced him to 225 months. The Seventh Circuit ruled that the district court did not act vindictively in sentencing defendant to a longer prison term at sentencing. When the court granted defendant’s request for relief, “it not only wiped the slate clean of the original sentence, but also lifted the constraints that the addendum had imposed on each party.” Defendant was no longer precluded from making objections to the PSR, and the government was no longer obligated to recommend at sentence at the bottom of the applicable sentencing range. Moreover, even if the circumstances supported a presumption of vindictiveness, the judge articulated sufficient reasons for the increased sentence based on new objective information regarding defendant’s conduct. U.S. v. Warda, 285 F.3d 573 (7th Cir. 2002).
7th Circuit holds that Rule 32(e) not triggered until court accepts plea. (790) At a change of plea hearing, the district judge, despite finding that defendant’s guilty plea was knowing and voluntary and supported by a sufficient factual basis, explicitly deferred acceptance of defendant’s plea until it had an opportunity to study the PSR. It advised defendant that if his plea agreement and guilty plea were accepted, it would advise him. After the PSR came out, defendant moved to withdraw his guilty plea, arguing that the government led him to believe during plea negotiations that he would receive a lesser sentence unaffected by dismissed drug counts. The court refused to permit defendant to withdraw his plea. On appeal, the government contended that the district court did not abuse its discretion in denying defendant’s motion to withdraw his plea because defendant failed to comply with Rule 32(e). The Seventh Circuit held that Rule 32(e) is not triggered until the district court completes the plea process by accepting the plea. The district court’s findings on voluntariness and the adequacy of the factual basis did not constitute the “functional equivalent of acceptance.” Because the district court never accepted defendant’s plea, the court should have permitted defendant to withdraw his plea freely, without any inquiry into defendant’s reasons for seeking to set it aside. U.S. v. Shaker, 279 F.3d 494 (7th Cir. 2002).
7th Circuit departs upward to take away benefit received at earlier sentencing. (790) Defendant promised in his cooperation agreement to “provide complete and truthful testimony” in any proceeding as requested by the government. Pursuant to the agreement, defendant provided grand jury testimony, and as a result, he received a downward departure. However, on five occasions after sentencing, despite a direct court order and a grant of immunity, defendant refused to take oath or provide testimony, and as a result, was convicted of criminal contempt, in violation of 18 U.S.C. § 401. The district court departed upward in order to take away the 66-month benefit conferred upon defendant at his earlier sentencing, finding that his refusal to cooperate amounted to a breach of the cooperation agreement. The Seventh Circuit affirmed. As in U.S. v. Simmons, 215 F.3d 737 (7th Cir. 2000), defendant initially agreed to cooperate, testified, received a benefit for his cooperation, and then refused to testify. The 17-level departure, which resulted in a 66-month sentence increase, was reasonable “because it took away the benefit conferred upon” defendant by the downward departure applied to his drug sentence. U.S. v. Jones, 278 F.3d 711 (7th Cir. 2002).
7th Circuit says government did not breach agreement by recommending sentence at top of guideline range. (790) Defendant was originally convicted of two counts of assaulting a federal officer, and received concurrent 36-month sentences. Because certain evidence was improperly excluded, the case was remanded for retrial. Before retrial, defendant pled guilty to one count of simple assault. In exchange for the plea, the government agreed to dismiss the original charges and recommend an acceptance of responsibility reduction. This resulted in a guideline range of 6-12 months. If defendant had not received the two-point acceptance reduction, his guideline range would have been 12-18 months. At the government’s recommendation, the district court imposed a 12-month term, the statutory maximum penalty. The Seventh Circuit held that it lacked jurisdiction to consider defendant’s claim that the court abused its discretion by sentencing defendant to the statutory maximum penalty. Absent an error of law or misapplication of the guidelines, there is no appellate jurisdiction over a district court’s choice of a sentence within an otherwise correct range. Although defendant claimed he received no credit for acceptance of responsibility, he quite clearly did receive the reduction, which reduced his guideline range from 12-18 months to 6-12 months (although, given the 12-month statutory maximum, it did not reduce his sentence). The government did not breach the plea agreement by requesting a 12-month sentence. The agreement did not bind the government to recommend a particular sentence with the guideline range. U.S. v. Byrd, 263 F.3d 705 (7th Cir. 2001).
7th Circuit rules government’s comments after court rejected sentencing recommendation did not breach agreement. (790) Defendant pled guilty to one count of second-degree murder. The district court imposed a nine-level upward departure under § 5K2.8 due to the brutality and heinous nature of defendant’s crime, although the government had recommended only a five-level departure. The court then asked whether the parties took any exception to the court’s finding. Defendant objected to the extent of the departure, arguing that his sentence with the nine-level departure was just as stiff as the penalty for first-degree murder, thus depriving him of the benefit of his plea. The government disputed this, noting that the first-degree murder statute required a mandatory term of life imprisonment. It concluded that “the Court’s rationale and basis for its upward departure is correct and the government will support that position.” Defendant argued on appeal that the government’s comments breached the plea agreement. The Seventh Circuit disagreed. The government fulfilled its promise to recommend a five-level departure, and the sentencing court disagreed with that recommendation. However, the government never made a promise to stand mute in the face of defendant’s effort to challenge the sentencing court’s finding. In fact, the plea agreement specifically stated that the government could take any position consistent with the sentencing court’s findings. U.S. v. Matchopatow, 259 F.3d 847 (7th Cir. 2001).
7th Circuit holds that government did not breach plea agreement. (790) At defendant’s original sentencing, the district court departed downward from a guideline range of 360 months to life to impose a sentence of 300 months. At resentencing, the court departed downward under § 5K1.1 from a range of 235-293 to impose a sentence of 210 months. At defendant’s second resentencing, based upon a guideline amendment which reduced the marijuana equivalency for a marijuana plant, the government asserted that the district court was “not obligated to honor its original departure, or award a proportionately equal departure.” The government had “no objection to a resentencing of the defendant at the high end of the new guideline range (188 months), but object[ed] to any further departure from that range.” The court imposed a 188-month sentence, but did not grant a § 5K1.1 departure. Defendant argued that the government breached the plea agreement by failing to remind the court of the nature and value of his cooperation and by specifically objecting to any departure from the revised guideline range. The Seventh Circuit found no breach. The government expressly informed the judge of the nature and extent of defendant’s cooperation at the two previous sentencing hearings. The plea agreement only required the government to argue for a sentence of 35 years. The recommendation of a 188-month sentence fell well below this sentencing cap. U.S. v. Atkinson, 259 F.3d 648 (7th Cir. 2001).
7th Circuit rules defendant had sufficient knowledge of increased sentence to make plea voluntary. (790) Defendant’s attorney advised defendant that under the plea agreement his sentence would be in the range of eight years. Unbeknownst to both the government and defense counsel at the time, defendant had an extensive criminal history that qualified him for career offender status, and subjected him to a sentence of about 22 years. Two months before sentencing, defendant’s criminal history, along with the sentencing ramifications, were disclosed to defendant in his PSR. Moreover, at the plea hearing, held the same day as sentencing, the court explained why his sentencing range had increased. Defendant acknowledged that his counsel had explained the PSR to him, and he informed the court that he still wished to plead guilty. In light of this, the Seventh Circuit held that defendant’s guilty plea was knowing and intelligently made. Although defendant implied that he did not learn the impact the guidelines would have on his sentence until the day of sentencing, this ignored the fact that he received the PSR containing the information two months before sentencing. Defendant was free, from the moment he signed the plea agreement, to the day of the change of plea hearing, to revoke his plea agreement. The agreement did not become binding until he informed the court that he wished to hold by it. U.S. v. Gilliam, 255 F.3d 428 (7th Cir. 2001).
7th Circuit holds defendant not entitled to jury determination of drug quantity. (790) Defendant pled guilty to possessing with the intent to distribute cocaine base in excess of 50 grams. There was no written plea agreement. As part of the plea colloquy, the judge asked defendant whether he understood that the government would have to prove beyond a reasonable doubt that he knowingly possessed cocaine base and that the amount he possessed exceeded 50 pounds. During the sentencing hearing, defendant moved to withdraw his guilty plea based on Apprendi v. New Jersey, 530 U.S. 466 (2000), arguing that he might have pled differently had he known that the government was required to prove beyond a reasonable doubt that he possessed more than 50 grams. The Seventh Circuit rejected this argument because it wrongly assumed that defendant had a right to a jury determination of drug quantity. Because defendant’s sentence did not exceed the statutory maximum under 21 U.S.C. § 841(b)(1)(A), Apprendi did not create for defendant a right to a jury determination of the drug quantity alleged in the indictment. Furthermore, by pleading guilty, defendant waived any right to a jury trial and could not contend on appeal that any particular issue should have been submitted to the jury. U.S. v. Parker, 245 F.3d 974 (7th Cir. 2001).
7th Circuit holds that receipt of higher sentence than in plea agreement did not require plea withdrawal. (790) Defendant moved to withdraw his plea because the preliminary sentence calculations described in his plea agreement were lower than the actual sentence he received. The discrepancy arose because at the time the plea agreement was signed, the government was not aware of defendant’s prior juvenile convictions. Defendant claimed that he did not tell the government or his attorney about the juvenile convictions because the attorney that represented him in the juvenile proceedings told him that those convictions could not be used against him in the future. The Seventh Circuit held that the district court did not abuse its discretion in refusing to allow defendant to withdraw his guilty plea. Usually, where the sentencing calculations in a plea agreement are described as “preliminary,” the later imposition of a higher sentence does not violate the plea agreement, and it does not provide the defendant with a “fair and just” reason to withdraw his plea. Defendant’s plea agreement specifically said that the guideline calculations were “preliminary in nature” and explained that the probation office would conduct its own investigation to come to a final calculation. The government did not mislead defendant. If anyone engaged in misleading behavior it was defendant. U.S. v. Cavender, 228 F.3d 792 (7th Cir. 2000).
7th Circuit holds that defendant violated proffer agreement. (790) Defendant, the president of a credit union, helped Binet, the chairman of the board, defraud the credit union in a number of transactions. After the fraud was revealed, defendant signed a proffer agreement which granted him use immunity for any information he provided on the fraud. Defendant testified before the grand jury that he refused to participate in Binet’s scheme to use the credit union’s money to purchase a collateralized mortgage obligation residual (CMOR) for their own profit and had no idea whether Binet ever did so. However, Binet testified that he and defendant made the investment together, and defendant later admitted that he participated in the CMOR’s purchase and shared in its profits. Defendant also failed to mention that he had conspired to alter the minutes of the board meetings, although defendant knew the government was relying on the minutes in its investigation. The Seventh Circuit held that defendant violated the proffer agreement, and thus the district court properly used information about the CMOR investment at sentencing. The proffer emphasized that defendant should not conceal or minimize his own actions in the offenses, and clearly stated that any false statements or omissions could be used against him. The government was within its rights to consider the proffer agreement voided due to defendant’s omissions concerning the CMOR and the alteration of the minutes. U.S. v. Lopez, 222 F.3d 428 (7th Cir. 2000).
7th Circuit says court would have applied gun increase even without protected statement. (790) Police found drugs, drug paraphernalia, and a loaded gun in a stolen motor home. At his arrest, defendant admitted that the gun belonged to him. His plea agreement required him to make a “full, complete and truthful statement” regarding his offense, and barred the government from using at sentencing the information he provided under the agreement. Defendant told his probation officer that Cashman, his drug supplier, had given him the motor home, and that the gun was in the home “at the time.” The Seventh Circuit affirmed a § 2D1.1(b)(1) firearm increase. Given the tight confines of the motor home and defendant’s admission at his arrest, the district court properly found that defendant possessed the weapon while he conspired with Cashman to distribute drugs. It was not clearly improbable that the gun was connected with the conspiracy. Deputies found in the motor home a variety of drug paraphernalia, some of it containing methamphetamine residue. Finally, although the plea agreement prohibited the court from considering defendant’s statement as to the source of the gun, the district court’s consideration of that statement was not plain error. Given the independent indicia that defendant possessed the gun during and in connection with the drug conspiracy, the district court still would have applied the § 2D1.1(b)(1) increase even without defendant’s revelation that his drug supplier gave him the gun. U.S. v. Cashman, 216 F.3d 582 (7th Cir. 2000).
7th Circuit directs court to explain how defendant breached plea agreement. (790) The government refused to file the § 5K1.1 motion because during the trial of co-conspirators, defendant lied on the stand regarding his deal with the government. The government argued that this lie constituted a material breach of the plea agreement and therefore it was relieved of any obligation to file the motion. The district court denied the motion. The Seventh Circuit ruled that the district court provided insufficient findings of fact to support its finding that defendant substantially breached the plea agreement. The government cannot unilaterally determine that the defendant has breached the plea agreement and refuse to uphold its end of the bargain. An evidentiary hearing is required for the court to determine if a substantial breach of the plea agreement has occurred. In this case, the judge simply stated that “there was no doubt in his mind that [defendant] did not live up to his end of the bargain.” The court did not elaborate or provide sufficient findings for its reasoning. On remand, the court must give a more complete explanation of what facts the court found that led to its conclusion that defendant “did not live up to his end of the bargain.” U.S. v. Frazier, 213 F.3d 409 (7th Cir. 2000).
7th Circuit holds that government’s refusal to file § 5K1.1 motion did not breach plea agreement. (790) The government promised as part of defendant’s plea agreement, that it would, in its sole discretion, determine whether defendant’s alleged cooperation amounted to substantial assistance. The government then refused to file a § 5K1.1 motion, finding defendant’s cooperation did not qualify as substantial assistance because although he cooperated in his own case, he failed to assist the government in any of the other related federal cases. The Seventh Circuit held that the government did not breach the plea agreement when it determined that defendant did not provide substantial assistance. Given the wealth of information the government had against defendant, his cooperation in his own case “was no more than frosting on the cake” and was not substantial assistance. U.S. v. Jones, 209 F.3d 991 (7th Cir. 2000).
7th Circuit holds that failure to advise defendant of mandatory minimum sentence was not harmless error. (790) Defendant pled guilty to a one-count indictment charging him with conspiracy to distribute marijuana. The district court sentenced him to 235 months in prison. Defendant complained that the district court failed to adequately inform him of the applicable mandatory minimum sentence. The Seventh Circuit agreed, and ruled that this was not harmless error. While the court to careful to advise defendant of his potential statutory maximum and his high-end sentence under the guidelines, there was no mention of a mandatory minimum sentence. Moreover, there was nothing to suggest that defendant was ever alerted to the mandatory minimum sentence. Defendant’s attorney told him that his guideline range could be as low as 70 to 108 months. The error was not harmless. Because the disparity between what defendant knew to be the lowest sentence he could receive (70 months) and the undisclosed 10-year mandatory minimum sentence (120 months) was so great, defendant’s decision to plead guilty could not have been fully informed. U.S. v. Fernandez, 205 F.3d 1020 (7th Cir. 2000).
7th Circuit refuses to require plea withdrawal based on claim that defendant lied during plea hearing. (790) Defendant sought to withdraw his plea, claiming he erroneously believed that he faced a maximum 60-month sentence. He also submitted an affidavit from his brother in which the brother claimed to own some crack that was included in defendant’s relevant conduct. However, at defendant’s plea hearing, defendant had admitted, under oath, that he owned the disputed crack. Defendant also swore that he knew that he faced a sentence of 60-480 months’ imprisonment. Defendant said he lied at the plea hearing because “I already had in my mind that I had 60 months coming. So I was just answering all your questions just be answering them, whether they were truthful or not.” The Seventh Circuit refused to order the district court to hold a hearing to investigate the possibility that defendant’s lawyer told him that he would receive a maximum sentence of 60 months. Once entered, a plea of guilty may be withdrawn only for a “fair and just reason.” Fed. R. Crim. P. 32(e). A defendant’s protestation that statements freely made under oath were in fact a pack of lies is not a “fair and just reason.” A district judge has the discretion to permit a defendant to withdraw the plea if the judge find convincing the defendant’s reasons for lying under oath. However, “a defendant has no chance of success on appeal when the judge elects to treat freely given sworn statements as conclusive.” U.S. v. Stewart, 198 F.3d 984 (7th Cir. 1999).
7th Circuit agrees that proper remedy for mutual mistake of fact was to void agreement. (790) Defendant and the government negotiated a plea agreement based on their understanding that his maximum sentence was 10 years. Defendant agreed to provide assistance, and the government agreed to recommend an acceptance of responsibility reduction and make a § 5K1.1 motion. After signing the agreement, the PSR revealed that defendant was an armed career criminal, which elevated his sentence to 15 years to life. Because the parties has signed the agreement under a mutual mistake of fact, the district court permitted defendant to withdraw his plea. Defendant let the plea stand, pointing out that because he had already helped the government, he no longer had any bargaining power. The Seventh Circuit rejected defendant’s claim that the government breached a promise of a maximum 10-year sentence. The government merely promised to recommend certain decreases in his sentence, which it did. The paragraph in the agreement referencing the maximum 10-year sentence was merely a recitation of the mistake of fact under which both parties were operating. The remedy for the mistake of fact was not to require the government to drop the counts that formed the basis for the armed career criminal classification. Rather, as the district court properly concluded, the remedy for the mutual mistake of fact was to permit defendant to void the agreement. U.S. v. Williams, 198 F.3d 988 (7th Cir. 1999).
7th Circuit upholds drug quantity finding based on defense counsel’s admission at sentencing. (790) The sentencing judge held defendant responsible for 1.3 kilograms of crack based on defense counsel’s admission at sentencing that defendant was responsible for this quantity. Defendant was present at the sentencing hearing and did not object to this statement by his counsel. Defense counsel’s admission was founded in part on defendant’s own admission that he sold 400 grams of crack; the remainder stemmed from defendant’s knowledge that his co-conspirators converted much of the cocaine they purchased from him into crack. Joiner stated that he cooked two ounces of powder into crack for defendant every two weeks for about two years, which independently accounted for as much as 2.21 kilograms. The Seventh Circuit found that this provided a sufficient basis for attributing 1.3 kilograms of crack to defendant. The court further ruled that the government did not violate the plea agreement by informing the sentencing judge that defendant trafficked in crack rather than powder cocaine. The agreement did not contain such a restriction and it would have been beyond the government’s power to make such a promise, since a prosecutor has an obligation to inform the court of all relevant conduct. U.S. v. Joiner, 183 F.3d 635 (7th Cir. 1999).
7th Circuit says no breach where agreement permitted government to withdraw recommendation. (790) Defendant claimed that the government breached her plea agreement by not making an acceptance of responsibility recommendation at sentencing. The Seventh Circuit found no breach because the plea agreement allowed the government to withdraw its recommendation if defendant did anything inconsistent with a true acceptance of responsibility. Defendant’s actions following her plea contradicted actual acceptance of responsibility. After the parties entered into the agreement, defendant raised 12 objections, many of them directly avoiding responsibility for her actions. Defendant claimed that she acted at her husband’s behest and that she was incapable of refusing his demands. Both the government and the district court believed that these objections were an attempt to avoid responsibility. This was reasonable given that defendant’s husband was already dead when she filed the false tax return involved in the offense of conviction. The sentencing judge said that defendant had backtracked from her guilty plea more than any other defendant the judge had sentenced. U.S. v. Thomas, 181 F.3d 870 (7th Cir. 1999).
7th Circuit holds that court’s mistaken view of plea agreement did not resurrect right to appeal. (790) Defendant waived his right to appeal, but reserved the right to challenge the admission of a statement he made to authorities concerning the size of his drug business. Based on this statement, the PSR concluded that defendant’s relevant conduct involved 5-15 kilograms of cocaine. The district court denied defendant’s motion to suppress, and held defendant accountable for 5-15 kilograms of cocaine. Defendant argued that the court’s drug quantity findings were inadequate, in violation of due process, and that his waiver of appeal was therefore invalid. The Seventh Circuit held that even if the court’s findings were inadequate, they did not rise to the level of a due process violation. The district court was under the mistaken impression that the parties had agreed that defendant’s relevant conduct was between 5-15 kilograms if the court denied defendant’s motion to suppress. However, neither party objected to this error. The court explicitly asked defense counsel whether defendant agreed that his relevant conduct covered 5-15 kilograms, and defense counsel assented. After summarily making finding, the court again asked whether there were any objections, and defense counsel failed to call attention to the mistake. Defendant could not complain that he was denied due process when he twice agreed with the court’s decision. U.S. v. Kratz, 179 F.3d 1039 (7th Cir. 1999).
7th Circuit holds that failure to inform defendant of supervised release was harmless error. (790) Defendant argued that his guilty plea was involuntary since the court neglected to inform him that he could receive supervised release. The Seventh Circuit found that the error was harmless. Defendant knew that the maximum statutory sentence for his offense was 30 years and his ultimate sentence (24 months’ imprisonment and five years of supervised release) fell within that maximum. U.S. v. Elkins, 176 F.3d 1016 (7th Cir. 1999).
7th Circuit rejects plea withdrawal where defendant unhappy with proposed guideline range. (790) Defendant pled guilty to possession of a firearm by a felon and conspiracy to commit money laundering. The Seventh Circuit upheld the district court’s refusal to permit defendant to withdraw his plea. Defendant’s timing and testimony in support of the motion to withdraw made it clear that he was motivated by his unhappiness with the PSR’s recommended sentencing range. The court also rejected defendant’s claim that he was entitled to withdraw the plea because he pled guilty without “discovery” relating to crimes that were uncharged when the plea agreement was negotiated. Defendant was really advocating that Rule 32(e) be used to undermine the plea negotiation process. In essence, defendant decided that when he saw the PSR that he overestimated the strength of the evidence developed during the government’s investigation. However, defendant’s reevaluation of his trial prospects did not provide a basis for withdrawing his validly entered guilty plea. A contrary interpretation of Rule 32(e) would give defendant the benefits of his plea agreement without any of the risks. U.S. v. Underwood, 174 F.3d 850 (7th Cir. 1999).
7th Circuit holds that failure to recommend acceptance of responsibility reduction breached plea agreement. (790) The government agreed as part of defendant’s plea agreement to recommend an acceptance of responsibility reduction “based upon facts currently known” to the government. The government later withdrew its recommendation, claiming that defendant denied relevant conduct. The Seventh Circuit held that the government’s failure to make the recommendation breached the plea agreement, since it was not based on any newly discovered evidence. The government claimed that it discovered post-plea that defendant lied about the starting date of his association with a drug runner named Duran. However, the “discovery” was based on a taped conversation between defendant and an informant that government possessed long before the plea agreement was negotiated. The government also claimed that defendant knew more about the role of Duran’s ex-wife than he admitted. However, the record did not support this conclusion. Defendant admitted from the beginning that he once picked up drugs from the ex-wife’s house. Absent newly discovered evidence, the government was bound by its agreement to recommend the acceptance of responsibility reduction. U.S. v. Grimm, 170 F.3d 760 (7th Cir. 1999).
7th Circuit says plea agreement obligated government to argue gun not possessed in connection with offense. (790) In defendant’s plea agreement, the government agreed to recommend a § 5C1.2 safety valve reduction. To be eligible for this provision, a defendant cannot possess a dangerous weapon in connection with the offense. At sentencing, the government advised the court that a gun was found in defendant’s car when he was arrested, and that this fact was overlooked by prosecutors when they entered into the plea agreement. Since the case was being remanded on other grounds, the Seventh Circuit did not decide whether the government breached the plea agreement. However, it noted that the agreement did obligate the government to fully inform the court why it believed the defendant did not possess a weapon in connection with the offense, since this was the only way the government could meaningfully recommend the safety valve reduction. It was not clear from the record that the government adequately did so. On remand, “the government is bound by the promises it made in the plea agreement and the district court can further reflect upon the appropriateness of the safety valve reduction.” U.S. v. Grimm, 170 F.3d 760 (7th Cir. 1999).
7th Circuit rules that defendant’s breach relieved government of obligation to move for departure. (790) Defendant’s plea agreement provided that the government would move for a substantial assistance departure if defendant gave his “full and truthful cooperation” to the government. The government refused to move for a departure. The Seventh Circuit agreed that defendant’s substantial breach of the plea agreement relieved the government of its obligation to move for a departure. Defendant failed to disclose his criminal history in his initial presentence interview. Although the district court believed defendant’s claim that he mistakenly thought his prior convictions were non-criminal traffic violations, defendant’s explanation did not suffice for purposes of the plea agreement. Defendant’s numerous other falsifications also violated the condition of “full and truthful cooperation.” He changed his story regarding his knowledge of the cocaine, thus making himself less credible as a witness. Similarly, defendant lied about his education, employment history and family situation. The lies were not irrelevant; they were part of a pattern of fraud, deceit, and misrepresentation that reduced defendant’s potential usefulness as a witness. U.S. v. Lezine, 166 F.3d 895 (7th Cir. 1999).
7th Circuit says plea agreement entitled defendant to evidentiary hearing on whether he fully cooperated. (790) Defendant’s plea agreement provided that the government would move for a substantial assistance departure if defendant gave his “full and truthful cooperation” to the government. The government refused to move for a departure, claiming that defendant had failed to meet his obligation to provide “full and truthful cooperation.” Defendant disputed this claim, contending that the government breached the plea agreement. The district court refused to review the matter, ruling that the government’s refusal to move for a downward departure was within its prosecutorial discretion. The Seventh Circuit held that the plea agreement entitled defendant to a hearing on whether he had provided full and truthful cooperation. The government limited its discretion by entering into the plea agreement. Although a defendant’s breach of the agreement may excuse the government from its obligations, the government cannot unilaterally determine that a defendant has breached a plea agreement. When the prosecution seeks to escape an obligation under a plea agreement on the grounds that the defendant has failed to meet some precondition, the defendant is entitled to an evidentiary hearing. U.S. v. Lezine, 166 F.3d 895 (7th Cir. 1999).
7th Circuit finds no breach where government concurred that defendant provided assistance. (790) Defendant pled guilty to conspiring to commit theft from a program receiving federal funds. As part of the plea agreement, the government promised to move for a sentence of 66% of the low end of the applicable guideline range based on defendant’s substantial assistance. Defendant argued that the government violated the plea agreement by failing to inform the district court of the extent of his substantial assistance to law enforcement officials. The Seventh Circuit found no breach because defendant did not give the government an opportunity to fulfill its promise. Two months before sentencing, defendant submitted his own memorandum in support of a § 5K1.1 departure. He attached as an exhibit an extensive discussion of his record of assistance to the government. It was hard to imagine anything the government could have added to this list at sentencing. Indeed, the government basically adopted this description. The government moved for a departure in compliance with the agreement. Defendant requested an even larger departure, but the court refused. U.S. v. Newman, 148 F.3d 871 (7th Cir. 1998).
7th Circuit finds plea hearing colloquy showed defendant was aware of appeal waiver. (790) In the plea agreement, defendant agreed to waive his right to appeal his sentence on any ground. The district court accepted defendant’s guilty plea but reserved acceptance of the plea agreement pending its review of the PSR. Before sentencing, defendant asked to withdraw from the plea agreement and sought to plead guilty without a plea agreement. He claimed that no one, including his attorney, had explained to him that the plea agreement included a waiver of his right to appeal his sentence. The Seventh Circuit upheld the district court’s refusal to allow defendant to withdraw his plea, because the plea colloquy showed that defendant was aware of the waiver. Under oath, defendant explicitly informed the district court that he had read the agreement, discussed the terms of it with his attorney, and that he understood that the agreement included a waiver of his right to appeal his sentence. The court twice asked defendant if he understood that he was giving up his right to appeal his sentence. Defendant’s self-serving claim that he did not know he was waiving his right to appeal was unsupported by the record. U.S. v. Standiford, 148 F.3d 864 (7th Cir. 1998).
7th Circuit finds government not bound by plea agreement after defendant fled to Mexico. (790) In 1995, defendant was arrested on drug charges and agreed to cooperate with police. He pled guilty to drug charges and the government agreed to recommend a sentence at the bottom of the applicable guideline range. Defendant’s lawyer and the government estimated the sentencing range to be 24-31 months. When defendant received the presentence report, which calculated a guideline range of 70-87 months, he fled to Mexico. He continued his drug dealing, but was lured back into the United States and arrested. The Seventh Circuit held that because defendant breached the plea agreement, the government was not obligated to recommend a 24-month sentence. Defendant breached the agreement by not appearing for sentencing and continuing his criminal activity. While he was a fugitive in Mexico, he still conspired to distribute marijuana in Illinois. Defendant could not reasonably expect the government to recommend the lower range of the sentencing guidelines when he fled to Mexico and committed the same crime from there. U.S. v. Delacruz, 144 F.3d 492 (7th Cir. 1998).
7th Circuit holds failure to advise defendant he could not withdraw plea is no basis for reversal. (790) In 1995, defendant was arrested on drug charges and agreed to cooperate with police. He pled guilty to drug charges and the government agreed to recommend a sentence at the bottom of the applicable guideline range. In accepting defendant’s guilty plea, the district court neglected to inform him that his plea could not be withdrawn if the district court did not accept the government’s sentence recommendation as required by Rule 11. The Seventh Circuit held that reversal was not required. The government never agreed to recommend a specific term of imprisonment but merely to recommend the lowest applicable guideline sentence. Although counsel incorrectly estimated that defendant would face a sentence of 24-31 months, defendant was informed by the court that these were mere estimates rather than an agreement by the government to recommend a 24-month sentence. The judge did discuss whether the guilty plea was coerced, whether defendant understood the nature of the charges, and whether defendant understood the consequences of the plea. The court also explained that it was not bound by the government’s sentencing recommendations. U.S. v. Delacruz, 144 F.3d 492 (7th Cir. 1998).
7th Circuit holds plea agreement reserved government’s right to present evidence about all of defendants’ conduct. (790) In a plea agreement, the defendants admitted that they intentionally failed to report the sale of 300,000 gallons of diesel fuel on the company’s federal excise tax returns from January 1987 through December 1988. They argued that the government breached the plea agreement by presenting evidence that defendants’ scheme involved far more than 300,000 gallons of fuel. The Seventh Circuit held that the government’s actions did not violate the plea agreement. Paragraph 9(l) of the plea agreement reserved the government’s right to present evidence that might affect defendant’s sentencing range and the right to “fully apprise the Court of the nature” of defendants’ conduct. In light of this provision, defendants could not have had a reasonable expectation that the government would be barred from presenting evidence of the actual number of gallons that went unreported. U.S. v. Schilling, 142 F.3d 388 (7th Cir. 1998).
7th Circuit rules plea agreement barred sentencing challenge. (790) In the plea agreement, the government agreed to file a substantial assistance motion for a downward departure so that defendant’s final sentence would be half of the low end of the applicable guideline range or half of the statutory minimum 10-year sentence, whichever was higher. Since the statutory minimum was higher, the government sought, and the court imposed, a five-year sentence. Nevertheless, defendant attempted to challenge the guidelines calculation. The Seventh Circuit rejected the challenge, ruling that the guidelines calculation could affect the sentence only if it was higher than one-half the statutory minimum—a result that would not reduce defendant’s sentence. U.S. v. Kator, 128 F.3d 589 (7th Cir. 1997).
7th Circuit holds that seeking enhanced § 841 penalties did not breach agreement. (790) Defendant was originally charged with various drug offenses. The government filed a § 851 information advising defendant of its intent to seek an enhanced sentence under § 841(b) based on defendant’s prior felony drug conviction. Defendant later pled guilty to two of the drug counts. The district court enhanced his sentence based on the prior felony conviction. Defendant argued that the government misled him into believing that it would not seek an enhancement if he pled guilty. The Seventh Circuit upheld the enhancement since there was no evidence that defendant and the government had such an agreement. The plea agreement contained no agreement by the government to withdraw the § 851 information on account of defendant’s guilty plea. The agreement specifically stated that there was no agreement as to defendant’s sentence. When defendant entered his guilty plea, the district court’s explicit comments indicated that the enhancement would apply. Although defendant’s attorney testified that he understood that the government would not seek the enhancement if defendant pled guilty, he also admitted that the agreement with the government was not as clear as what [he] thought [the] understanding and agreement was.” U.S. v. Jackson, 121 F.3d 316 (7th Cir. 1997).
7th Circuit holds that description of two possible penalty schemes satisfied Rule 11. (790) Defendant pled guilty to being a felon in possession of a firearm. His plea agreement provided that he was subject to one set of penalties if he qualified as an armed career criminal, and a different set of penalties if he did not. It also stated that he would be permitted to withdraw his plea if he fell under the ACCA. Although the district court advised him of both alternatives at his plea hearing, defendant argued that the court violated Rule 11 by failing to inform him of the exact mandatory minimum and maximum sentence he faced. The Seventh Circuit held that the court’s description of the two possible scenarios satisfied Rule 11. At the time of the hearing, it had not yet been determined whether defendant qualified as an armed career criminal, and no one could compute with specificity the exact sentencing range defendant faced. The court expressly advised defendant of the possible punishments he could receive under either scenario, and told him he was entitled to withdraw his guilty plea if the harsher scenario applied. The district court’s disclosure sufficiently informed defendant of his rights so that he could make an intelligent, knowing and voluntary plea. U.S. v. Richardson, 121 F.3d 1051 (7th Cir. 1997).
7th Circuit finds counsel not ineffective in believing defendant was not a career offender. (790) Under 28 U.S.C. § 994(h), career offenders must be sentenced “at or near the maximum term authorized for” the offense. Amendment 506 to the guidelines states that this refers to the maximum without consideration of enhancements based on a defendant’s prior crimes. However, under both circuit law and the Supreme Court’s recent decision in U.S. v. LaBonte, 520 U.S. 751, 117 S.Ct. 1673 (1997), Amendment 506 is invalid and “maximum term” means the highest statutory maximum after including all enhancements. The Seventh Circuit rejected defendant’s claim that he should have been permitted to withdraw his plea because at the time he entered it both he and his attorney, aware of Amendment 506, expected that he would receive a lower sentence. The judge asked defendant at the plea hearing why he was entering a guilty plea. Defendant did not mention sentencing considerations as his reason. The judge advised defendant that the sentence could be as high as 405 months’ imprisonment. Defendant did not reply that he understood the maximum was 262 months. Counsel was not ineffective for failing to determine that Amendment 506 would be struck down. Two courts of appeals concluded that the amendment was a permissible interpretation of the statute and three Justices in LaBonte agreed. A lawyer is not ineffective for coming out on the wrong side of a conflict among the circuits. U.S. v. Rice, 116 F.3d 267 (7th Cir. 1997).
7th Circuit finds failure to advise defendant that he could withdraw plea was harmless error. (790) The judge violated Rule 11(e)(2) by failing to advise defendant during his plea hearing that if the judge disagreed with the sentencing recommendations in the plea agreement, defendant would not be free to withdraw his guilty plea. The Seventh Circuit held that the Rule 11(e)(2) violation was harmless error. The plea agreement clearly advised defendant that he could not withdraw his plea if the judge disagreed with its sentencing recommendations. Defendant was a businessman represented by an experienced criminal attorney. Defendant and his lawyer clearly thought they had struck a great deal with the government, and gambled on the judge’s accepting it. U.S. v. Hauptman, 111 F.3d 48 (7th Cir. 1997).
7th Circuit finds prosecutor’s remarks did not require rescission plea agreement. (790) Defendant bribed the purchasing agent for an advertising firm to purchase, at exorbitant prices, hundreds of thousands of dollars worth of unneeded cleaning supplies. The government and defendant agreed in a plea agreement that defendant should be sentenced under the commercial bribery guideline, which would result in a sentencing range of only 4-10 months. The judge rejected the plea agreement and sentenced defendant for fraud, which resulted in a 18-24 month sentencing range. The Seventh Circuit held that the prosecutor’s comment that defendant had acknowledged in the plea agreement that he had engaged in fraud was not a material breach of the plea agreement. The judge had already told the parties that he did not think the plea agreement was in the interests of justice. The prosecutor did not follow up this statement with a suggestion that the judge use the fraud guideline. The prosecutor’s statement, while unnecessary and inappropriate, was not a sufficient breach of the agreement to require its rescission. U.S. v. Hauptman, 111 F.3d 48 (7th Cir. 1997).
7th Circuit says government did not breach promise to recommend three level reduction. (790) Defendant argued that the waiver of appeal provision in his plea agreement was invalid because the government breached its promise in his plea agreement to recommend a three level acceptance of responsibility reduction. The Seventh Circuit held that under the particular facts of this case, the government’s recommendation of a two level reduction did not breach its promise to recommend a three level reduction. Before the government addressed the § 3E1.1 issue, the court rejected defense counsel’s request for a three level reduction, implying that if it granted the reduction, it might depart upward from the guidelines to compensate. Defense counsel then strategically backed off from her request for a three-point reduction, instead asking for “something off” (i.e. a two level reduction). When the government was asked for its opinion, it agreed with defense counsel’s position. The government did not breach the plea agreement by modifying its recommendation in accordance with defense counsel’s modification. The judge clearly understood that the government and defense counsel were in agreement on the § 3E1.1 issue. U.S. v. Feichtinger, 105 F.3d 1188 (7th Cir. 1997).
7th Circuit holds court substantially complied with Rule 11 at plea hearing. (790) In this pre‑guidelines case, defendant challenged the adequacy of his guilty plea proceeding in the district court. The Seventh Circuit held that the plea hearing substantially complied with Rule 11, and that any conceivable shortcomings were “less than harmless error.” Although the judge may have neglected to mention a few things, the elaborate plea agreement touched every base. When an elaborate plea agreement is present in a case where a defendant is represented by counsel, a review of the plea proceedings will include a look at that agreement itself as well as the judge’s Rule 11 colloquy. Only if both are considered can the totality of the circumstances regarding the voluntariness of the plea be ascertained. Here, the totality of the circumstances showed that defendant’s plea was knowingly and voluntarily made. U.S. v. Akinsola, 105 F.3d 331 (7th Cir. 1997).
7th Circuit finds request for upward criminal history departure did not breach plea agreement. (790) Defendant’s plea agreement set out certain points of agreement concerning the calculation of defendant’s offense level. At sentencing, the government moved for an upward criminal history departure. The Seventh Circuit held that this request did not breach the plea agreement. The paragraph outlining the calculation of defendant’s offense level stated that it was based on currently available information and that it covered areas of agreement between defendant and the government. Moreover, the unambiguous language of paragraph 5 stated that at sentencing, both the government and defendant would be free to recommend whatever sentence they deemed appropriate. The paragraph outlining the sentencing calculation made no mention of criminal history. U.S. v. Williams, 102 F.3d 923 (7th Cir. 1996).
7th Circuit says new offense after plea permitted government to oppose acceptance credit. (790) While working as a live‑in nanny, defendant fraudulently obtained credit cards in the name of her employers and charged over $22,000. Her plea agreement provided that she was entitled to a reduction for acceptance of responsibility. She acknowledged that the government’s position was “based on the information presently available and known to the government.” After her plea hearing, defendant committed a similar offense, forging another employer’s signature on stolen checks. Before sentencing, the government stated its intention not to recommend the acceptance of responsibility reduction. Defendant argued that this breached the plea agreement. The Seventh Circuit held that the statement that the government’s position was based on current information qualified the government’s obligation. Defendant’s new criminal conduct after signing the plea agreement undercut her claim of acceptance of responsibility. Given the qualifying language of the plea agreement, it was unreasonable for defendant to believe that the government would still be obligated to recommend the § 3E1.1 reduction. U.S. v. Ashurst, 96 F.3d 1055 (7th Cir. 1996).
7th Circuit says government’s failure to state position on the record did not breach plea agreement. (790) Defendant argued that the government breached its plea agreement with him by not arguing for the low end of the applicable guideline range. The Seventh Circuit held that the government’s failure to state its position on the record did not violate the agreement. At sentencing, the court advised defendant that it need not follow the government’s recommendation. The government had already conveyed to the court its position pursuant to the agreement and the court had in its possession written evidence of that agreement. Orally stating what was contained in the written agreement, with which the court was already familiar, would not have likely changed defendant’s sentence. U.S. v. Flores‑Sandoval, 94 F.3d 346 (7th Cir. 1996).
7th Circuit finds waiver of right to appeal was not knowing and voluntary. (790) Defendant attempted to appeal the denial of a minor role reduction. The government argued that after sentencing, defendant verbally agreed to waive his right to appeal in return for a Rule 35(b) motion to reduce the sentence from 70 to 60 months. Defense counsel sent a letter to the prosecution confirming this, but the defendant never signed a written agreement. The government’s Rule 35(b) motion did not say the reduction was in exchange for a waiver of the right to appeal. When defendant refused to dismiss his appeal, defense counsel withdrew, stating that she could not “in good conscience” participate in defendant’s effort to violate his agreement with the government. The Seventh Circuit held that the record did not establish that defendant knowingly and voluntarily waived his right to appeal his sentence. A specific dialogue with the judge is not a necessary prerequisite to valid waiver of appeal if there is other evidence. But here the only evidence was the representations of defense counsel in a letter and a motion to withdraw. Even if true, counsel’s statements did not show that defendant actually understood the bargain he supposedly accepted. U.S. v. Agee, 83 F.3d 882 (7th Cir. 1996).
7th Circuit agrees that career offender status was material part of plea agreement. (790) Defendant pled guilty to bank larceny. In return, the government dropped five counts of bank robbery. The plea agreement stipulated that defendant was a career offender and that his sentencing range would be 100‑125 months. At sentencing, defendant sought to challenge his classification as a career offender. The Seventh Circuit agreed that the career offender stipulation was a material term of the plea agreement, and if defendant pursued such a challenge, the government could withdraw from the agreement. The district court did not abuse its discretion in deciding that the plea agreement was the minimum that was acceptable under the guidelines. The court properly implied that it was unwilling to impose a lesser sentence on defendant, and that if it could not sentence defendant as a career offender, it would be obliged to reject the entire agreement. Given § 6B1.2(a)’s directive that a plea agreement adequately reflect the seriousness of defendant’s behavior, it probably would have been an abuse of discretion for the court to accept the plea and impose a 12‑18 month sentence. U.S. v. Sandles, 80 F.3d 1145 (7th Cir. 1996).
7th Circuit finds no breach of agreement to recommend a sentence no higher than middle of range. (790) The government promised to recommend a sentence no higher than the middle of defendant’s final guideline range. That range was originally 168-210 months, but he was subject to a 180-month mandatory minimum. At sentencing, the government said the middle was 195 months (referring to a range of 180-210 months), but recommended a statutory minimum of 180 months because of defendant’s assistance to authorities. Defendant argued that the middle of his range was actually 189 months (referring to a range of 168-210 months) and that to give him 15 months’ credit for his assistance (to a sentence of 174 months), the government should have made a § 3553(e) downward departure motion. The Seventh Circuit disagreed. First, under § 5G1.1(c)(2), defendant’s final applicable sentencing range was 180-210 months; the middle of this range was 195 months. Second, even if the middle of the range was 189 months, the government did not breach the plea agreement. The prosecutor recommended a sentence no higher than the middle of either range. U.S. v. King, 62 F.3d 891 (7th Cir. 1995).
7th Circuit rejects need for elaborate warnings before waiver of right to appeal. (790) As part of his plea agreement, defendant expressly waived the right to appeal his sentence under 18 U.S.C. § 3742 or any other ground. The Seventh Circuit held that the waiver was effective without the need for elaborate warnings required for the waiver of some constitutional rights. The judge was not required to include the waiver of appeal in the Rule 11 colloquy. The upward departure did not invalidate the waiver; if this were sufficient to allow an appeal then waivers would be totally ineffectual. U.S. v. Wenger, 58 F.3d 280 (7th Cir. 1995).
7th Circuit upholds 10-year mandatory minimum despite five-year minimum in plea agreement. (790) The Seventh Circuit upheld a mandatory minimum 10-year sentence even though defendant’s plea agreement provided for a mandatory minimum sentence of five years. The plea agreement was made under Rule 11(e)(1)(B), and therefore was not binding on the court. The court was free to impose any sentence it considered proper in light of defendant’s conduct. The district judge carefully cautioned defendant at both the plea hearing and the sentencing hearing that he was not required to accept the government’s sentencing recommendation. The 10-year sentence was well within the five to 40 year range discussed in the agreement. Most importantly, when faced with the mandatory minimum 10-year sentence, the judge gave defendant the chance to withdraw her plea and go to trial. She voluntarily chose to persist in her plea of guilty. U.S. v. Eppinger, 49 F.3d 1244 (7th Cir. 1995).
7th Circuit rules that higher offense level did not breach plea agreement. (790) The district court determined that defendants had an offense level of 24. They argued that under the plea agreement they were guaranteed an adjusted offense level of no more than 22. The Seventh Circuit disagreed. The plea agreement itself did not specify that the government would recommend any particular offense level. Moreover, at the plea hearing, the court advised defendants that this was “an open plea,” and that the government did not recommend a particular sentence. Although the government told the court that it believed the “worst case scenario” for each defendant was an offense level of 22, the court ultimately advised defendants that it had “no idea” what defendants’ sentences would be. U.S. v. Brown, 47 F.3d 198 (7th Cir. 1995).
7th Circuit finds defendant waived objection to supervised release where it was discussed in plea agreement. (790) Defendant argued that he should be entitled to withdraw his guilty plea because he was not informed that he would be sentenced to supervised release after serving his term of incarceration. The 7th Circuit held that defendant waived this issue by failing to raise it at sentencing. Defendant understood his guilty plea. His plea agreement called for probation or supervised release as part of his sentence. There was no objection to the sentence when it was imposed. A defendant’s failure to raise the issue of an alleged breach of a plea agreement at the sentencing hearing waives the matter for appeal. U.S. v. Walton, 36 F.3d 32 (7th Cir. 1994).
7th Circuit says judge’s failure to warn that plea could not be withdrawn was harmless error. (790) The government promised as part of defendant’s plea agreement to recommend a sentence of either a five year mandatory minimum or the bottom of the applicable guideline range. At defendant’s plea hearing, the district court informed defendant that he faced a possible mandatory minimum sentence of 10 years, and that it was not bound by his plea agreement. The court failed, however, to tell defendant that the plea could not be withdrawn if the court decided to reject the government’s sentencing recommendation. The 7th Circuit held that the district court’s failure to give the warning required by Fed. R. Crim. P. 11(e)(2) was harmless error. At sentencing, the court provided defendant with a special opportunity to withdraw his plea when the court learned that defendant may have misunderstood how his plea agreement would be used. Defendant elected to accept his plea and received his sentence. Had the Rule 11(e)(2) warning been given, defendant would have responded in exactly the same manner and accepted his plea. Moreover, defendant’s plea agreement stated that the court was not bound by the agreement. Defendant acknowledged that he had read and understood the agreement. U.S. v. Diaz-Vargas, 35 F.3d 1221 (7th Cir. 1994).
7th Circuit approves obstruction enhancement for lies at sentencing hearing. (790) At his plea hearing, defendant testified that when arrested he had possession of two kilograms of cocaine, and that he was planning to sell it. At the sentencing hearing, he testified that the informant actually possessed the drugs when the two were arrested, and that defendant had carried a firearm to protect the cocaine. The 7th Circuit upheld an enhancement for obstruction of justice based on defendant’s lies at the sentencing hearing. The district court could properly conclude that defendant’s testimony was contradictory and the difference in his accounts was more than a matter of degree. The government did not breach the plea agreement by “urging” the court to apply the obstruction enhancement. First, the government only pointed out the inconsistencies in defendant’s testimony after the court, sua sponte, asked the parties to address the matter. Second, the agreement provided that defendant could be prosecuted if he testified falsely. U.S. v. Winston, 34 F.3d 574 (7th Cir. 1994).
7th Circuit finds failure to move for substantial assistance departure did not breach plea agreement. (790) Defendant argued that the government breached his plea agreement by failing to zealously interview him and take full advantage of his decision to cooperate. The 7th Circuit found no breach. The government did interview defendant as agreed. The information that he provided, however, proved nearly worthless. The government therefore did not interview defendant further. The district court agreed that the information was worthless. The government was clearly within its rights in not recommending a downward departure. Since there was no breach, the district court did not err in refusing to permit defendant to withdraw his plea. U.S. v. Nash, 29 F.3d 1195 (7th Cir. 1994).
7th Circuit finds plea agreement did not contain waiver of right to appeal. (790) Defendant argued that paragraphs 5 and 7 of his plea agreement waived the government’s right to appeal his sentence. Paragraph 5 provided that if the court departed from the guidelines, defendant was still bound by his guilty plea and neither party could withdraw from the plea agreement. Paragraph 7 provided that defendant was free to request any sentence he desired, including a request for a downward departure. The 7th Circuit found that the plea agreement did not contain any waiver of the right to appeal the sentence. The waiver of the right to appeal must be express and unambiguous. The paragraphs cited by defendant did not contain such express language. Defendant’s claim that it was his understanding that both he and the government waived their rights to appeal was directly contradicted by defendant’s own statements at his plea hearing. U.S. v. Hendrickson, 22 F.3d 170 (7th Cir. 1994).
7th Circuit denies plea withdrawal even though defendant believed he had only a few years to live. (790) Defendant contended that he should have been permitted to withdraw his guilty plea because he pled guilty in the belief that he only had a few years to live. He later learned he had a substantial time to live. The 7th Circuit found no abuse of discretion in the district court’s refusal to permit the plea withdrawal. The judge determined that the plea was a knowing and intelligent and voluntary choice. Statements made to the court at the time of the plea were binding, and defendant’s attempts to retract did more to expose him to prosecution for perjury than to justify plea withdrawal. U.S. v. Ivory, 11 F.3d 1411 (7th Cir. 1993).
7th Circuit says court properly advised defendants of possible sentence. (790) The 7th Circuit held that the district court properly advised defendants at their plea hearing of the possible sentence they faced, as required by Fed. R. Crim. P. 11(c)(1). The court cautioned that the sentencing consequences could include life imprisonment, a fine up to $4 million, and at least five years supervised release. It also explained the mandatory minimum sentences applicable if certain drug quantities were involved in the offense. This recitation was not too vague to permit defendants to make knowing and voluntary pleas. Since at the time of the hearing, the district court had not yet determined the amount of cocaine involved, it could not compute with specificity the exact range of sentencing possibilities. U.S. v. Wagner, 996 F.2d 906 (7th Cir. 1993).
7th Circuit finds counsel effective notwithstanding failure to object to arguable breach of plea agreement. (790) In return for defendant’s guilty plea, the government agreed to recommend a downward departure for substantial assistance. Defendant argued that the government breached its agreement by using “equivocal language” in its recommendation and by failing to file a written 5K1.1 motion until the morning of the sentencing hearing. He claimed that his counsel’s failure to object to these breaches constituted ineffective assistance of counsel. The 7th Circuit disagreed, noting that the government had previously informed the district court that it would file the motion and that the district court had appeared to treat the written motion as timely filed. In addition, while the government had made clear that it did not favor a departure in excess of its recommendation, it was not equivocal in supporting a departure in the agreed amount. U.S. v. Jimenez, 992 F.2d 131 (7th Cir. 1993).
7th Circuit finds court’s rejection of government motion undermined claimed breach of plea agreement. (790) As part of a plea agreement, the government agreed to recommend that defendant’s sentence be set at 105 months to reflect defendant’s substantial assistance. This was a reduction of 30 percent from defendant’s guidelines range as calculated in the plea agreement. At sentencing, however, the guidelines range was higher because the court found that defendant possessed weapons during the offense. Rather than recommending that defendant still receive a sentence of 105 months, the government recommended a 30-percent reduction from the newly calculated guidelines range. Defendant did not object at the time of sentencing, but claimed on appeal that this recommendation breached the plea agreement. The 7th Circuit found no plain error. In addition to the possibility that the government’s actions actually complied with the plea agreement, the court noted that the district court had refused to depart from the guidelines range at all. U.S. v. Eibler, 991 F.2d 1350 (7th Cir. 1993).
7th Circuit holds that court properly advised defendant he could not withdraw plea. (790) The 7th Circuit rejected defendant’s contention that the district court did not advise him, as required by Fed. R. Crim. P. 11(e)(2), that he could not withdraw his guilty plea if the court refused to accept the government’s sentencing recommendations. Although the court did not track the Rule’s language directly, under the circumstances the advice was adequate. The plea agreement was under Rule 11(e)(3)(B), and defendant knew that neither the terms of the agreement nor the parties’ sentencing recommendations would restrict the court’s ability to sentence him. Although the court failed to tell defendant at the same point in the hearing that it was not required to follow the sentencing recommendations and that defendant could not withdraw his plea if the court chose to ignore those recommendations, the court’s admonition was unambiguous. U.S. v. Bennett, 990 F.2d 998 (7th Cir. 1993).
7th Circuit denies plea withdrawal where attorney was competent and defendant was aware of maximum term. (790) Defendant contended that the district court should have granted his motion to withdraw his guilty plea because he received ineffective assistance of counsel and because he pled guilty based on counsel’s misadvice that he would only receive a 120-month sentence. The 7th Circuit upheld the denial of the motion, finding both claims baseless. Defendant’s claim that counsel did not discuss the case with him or show him any of the government’s evidence against him was belied by the record. Defendant’s claim that his plea was based on erroneous advice from counsel was also belied by the record. At his plea withdrawal hearing, defendant admitted that when he pled guilty he knew that his minimum sentence would be 10 years and could go as high as life. U.S. v. Price, 988 F.2d 712 (7th Cir. 1993).
7th Circuit affirms defendant was advised of rights prior to guilty plea. (790) The 7th Circuit upheld the denial of defendant’s motion to withdraw his guilty plea, affirming that the district court informed him, as required under Rule 11, of his constitutional rights. The court’s statements advised defendant of the full panoply of constitutional rights, including the right to a jury trial, the right to enter a not guilty plea, and the right to confront and cross-examine adverse witnesses. The court also advised the AUSA to explain to defendant the charges against him. Defendant’s claim that the court was required to inform him that he could withdraw his guilty plea if the court rejected the sentencing arrangement in his plea agreement was nonsensical, since defendant and the government did not reach an agreement as to sentencing. There was no error in accepting the guilty plea before the presentence report was prepared. U.S. v. Price, 988 F.2d 712 (7th Cir. 1993).
7th Circuit says government not required to dismiss counts after judge rejected plea agreement. (790) Defendant’s plea agreement provided that in return for his guilty plea to one count, the government would dismiss all remaining counts and would recommend a downward departure to a 12-month sentence. The agreement explicitly provided that if the judge refused to impose the 12-month sentence, the agreement would become null and void. The judge rejected the plea arrangement, and departed downward to a sentence of five years’ probation. One month later the government received a copy of the judgment which indicated that all other charges were dismissed “on the government’s motion.” The 7th Circuit remanded for resentencing. The agreement was very clear that the government was only required to dismiss the remaining counts if the judge accepted the agreed-upon prison term. Once the court scuttled the incarceration phase of the agreement, it also scuttled the government’s agreement to move to dismiss the balance of the indictment. U.S. v. Muzika, 986 F.2d 1050 (7th Cir. 1993).
7th Circuit finds no breach of plea agreement despite failure to recommend acceptance reduction. (790) Although defendant’s oral plea agreement provided that the government would recommend an adjustment for acceptance of responsibility, the government refused to make such a motion. It maintained that it was not obligated to make the recommendation because after the plea agreement, defendant untruthfully minimized his involvement in the offense and had not fully accepted responsibility. The 7th Circuit affirmed that the government did not breach the plea agreement. The district court’s interpretation of the plea agreement was not clearly erroneous. U.S. v. Yanez, 985 F.2d 371 (7th Cir. 1993).
7th Circuit affirms refusal to permit withdrawal of plea where judge found defendant not credible. (790) Defendant sought to withdraw his plea, arguing that he had not understood the consequences of the sentencing guidelines and his attorney coerced him into pleading guilty by demanding a substantial fee increase for a jury trial. The 7th Circuit found it unnecessary to determine whether these claims presented grounds to withdraw the plea since the district court specifically found that defendant was not credible. By rejecting defendant’s credibility, the district court had no reason to decide whether his allegations, if true, would have constituted a fair and just reason to allow the plea to be withdrawn. U.S. v. Jackson, 983 F.2d 757 (7th Cir. 1993).
7th Circuit holds that defendant waived government’s breach of plea agreement. (790) Defendant’s plea agreement provided that the government would recommend a sentence within the applicable guideline range. Nonetheless, the government filed an objection to the presentence report arguing for an upward departure on several grounds. It then filed an amended objection recognizing that the plea agreement prevented it from advocating a departure, but stating its belief that there was a legal basis for a departure should the court, in its discretion, decide to do so. The district court imposed a sentence at the top of the guideline range. Defendant contended for the first time on appeal that the government’s objection breached the plea agreement. The 7th Circuit affirmed, ruling that defendant waived his objection to the breach of the agreement. There was no plain error, since defendant did not show that but for the breach, his sentence would have been different. U.S. v. D’Iguillont, 979 F.2d 612 (7th Cir. 1992).
7th Circuit holds that error in warning about supervised release did not entitle defendant to withdraw guilty plea. (790) The district court advised defendant that in addition to his term of imprisonment, he faced a term of supervised release of four years to life. In fact, the term was eight years to life, and defendant actually received an eight year term of supervised release. The 7th Circuit held that the district court’s error in advising defendant of his mandatory minimum term of supervised release was harmless, and did not entitle defendant to withdraw his guilty plea. Defendant’s plea agreement did not promise that the term of supervised release would be at the low end of the range. The term he received fell within the range of the warning defendant received. U.S. v. Saenz, 969 F.2d 294 (7th Cir. 1992).
7th Circuit upholds district court’s refusal to hold evidentiary hearing before denying motion to withdraw plea. (790) The 7th Circuit upheld the district court’s refusal to hold an evidentiary hearing prior to denying defendant’s motion to withdraw his guilty plea. A defendant who presents a reason for withdrawing his plea that contradicts the answers he gave at a Rule 11 hearing “faces an uphill battle” in persuading a judge that his purported reason for withdrawing his plea is fair and just. Here, defendant contended that he was confused about a possible entrapment defense and that he did not receive sufficient advice from counsel to dispel his confusion. However, at the hearing, defendant displayed no confusion about what he was doing, and never once used the word “entrapment.” Moreover, he was no “babe in the woods,” being 42 years old with four prior felony convictions. It was not clear error for the district judge to conclude without an evidentiary hearing that defendant’s claims of confusion were just an attempt to manipulate the court. U.S. v. Trussel, 961 F.2d 685 (7th Cir. 1992).
7th Circuit rules that challenge to alleged breach of plea agreement was waived by failure to object below. (790) In the plea agreement, defendant promised to cooperate with the government and the government agreed to make the sentencing court aware of the nature and extent of defendant’s cooperation. At sentencing, defendant testified about the extent of his cooperation. On appeal, he contended that the government’s failure at sentencing to confirm the nature and extent of his cooperation was a breach of the plea agreement. The 7th Circuit ruled that defendant waived any breach by failing to raise it at sentencing. Any violation of the plea agreement could have been cured if defendant or his counsel had raised this issue below. Moreover, this trivial violation of the plea agreement would not require setting aside defendant’s guilty plea. The court received the same evidence as if the government had offered the testimony, because it was obvious that the government would have objected to the testimony if it did not agree. U.S. v. Pryor, 957 F.2d 478 (7th Cir. 1992).
7th Circuit rules government did not breach unwritten agreement to move for downward departure. (790) Defendant pled guilty and agreed to aid the government without the benefit of a written plea agreement. He then contended that the government breached an unwritten promise to submit a motion for downward departure based upon his substantial assistance. The 7th Circuit ruled that the government’s failure to move for a downward departure was not the breach of any unwritten agreement. The only evidence as to the parties’ oral understanding was that the government agreed to “inform” the sentencing court of defendant’s cooperation. The government did inform the court, although it was a “cavalier rendition” of defendant’s assistance. The information was “almost buried in an avalanche of examples of the lack of assistance” offered by defendant. “Damaging with praise this faint appear[ed] to shirk” the government’s duty to act in good faith. U.S. v. Rosa, 946 F.2d 505 (7th Cir. 1991).
7th Circuit rules misstatement about minimum penalty was harmless error. (790) Defendant contended that his guilty plea was unknowing and involuntary because the district court misstated the statutory minimum penalty as “three years, which would be 60 months” rather than five years. The 7th Circuit held this misstatement to be harmless error. Just before the judge made this statement, he asked the prosecutor on the record what the possible penalties were for defendant’s offense, to which the prosecutor responded “five to 40 years.” Even if defendant did not hear the prosecutor’s response, the court assumed that since defendant was a senior in college, he could do the arithmetic necessary to determine that 60 months equaled five years. U.S. v. Musa, 946 F.2d 1297 (7th Cir. 1991).
7th Circuit upholds factual basis for guilty plea despite defendant’s claim that he was a buyer rather than seller of cocaine. (790) Defendant contended that there was not an adequate factual basis on the record for his guilty plea, as required by Fed. R. Crim. P. 11(f), because during his plea hearing he contended that he was merely a buyer, and not a seller, of cocaine. He argued that once he contested the evidence, the court was obligated to lay a factual foundation on the record before accepting the plea. The 7th Circuit upheld defendant’s plea, ruling that there was an adequate factual basis for the plea. Because defendant was only charged with conspiracy to distribute cocaine, the only facts that needed to be established on the record were the elements of conspiracy. Here defendant admitted that he engaged in drug activities with a drug dealer, and that he helped the dealer facilitate the conspiracy. U.S. v. Musa, 946 F.2d 1297 (7th Cir. 1991).
7th Circuit finds no breach of plea agreement in government’s introduction of evidence concerning other misconduct. (790) Defendant contended that the government breached his plea agreement by informing the district court at his sentencing hearing that he had violated his bond by being arrested for drunk driving, and that he had concealed his ownership of an automobile from his probation officer. The government used this information to justify its decision to suggest only a small downward departure. A co-defendant, who was responsible for distributing 4,500 pounds of marijuana, received a 15-year sentence, while defendant, who was responsible for 2,000 pounds of marijuana, received an 11-year sentence. The 7th Circuit rejected this contention. The fact that a co-defendant is treated differently is not a ground upon which the appellate court can review a sentence that conforms with the guidelines. U.S. v. Brown, 944 F.2d 1377 (7th Cir. 1991).
7th Circuit affirms denial of motion to withdraw guilty plea. (790) Defendant appealed the district court’s denial of his motion to withdraw his guilty plea to using firearms in relation to a drug trafficking crime. Defendant claimed that he never admitted to using or carrying the guns in relation to the crime of conspiracy to distribute cocaine, so there was no factual basis for the plea. The 7th Circuit affirmed the denial of defendant’s motion, finding an adequate factual basis for the plea. The plea agreement stated that defendant had the guns in his residence at the time he was taking delivery of a large quantity of cocaine. At the plea hearing, defendant admitted that the guns were in his home at the time of the drug offense. In addition, the government provided the district court with a summary of its evidence, including testimony regarding the seizure of drugs, firearms and money from defendant’s home. Defendant agreed with the government’s summary of the evidence. U.S. v. Cooper, 942 F.2d 1200 (7th Cir. 1991).
7th Circuit holds miscalculation of guideline range does not entitle defendant to withdraw guilty plea. (790) Defendant contended that the district court abused its discretion in denying his motion to withdraw his guilty plea. According to defendant, his guilty plea was not knowingly entered because he did not understand that he might be subject to a four-level increase in offense level for occupying a leadership position in the drug organization. The 7th Circuit found no abuse of discretion. The fact that a defendant underestimates his sentence when entering his plea is not a fair and just reason to permit him to withdraw that guilty plea. At his plea hearing, defendant acknowledged the maximum sentence for his offense, that punishment was governed by the guidelines, that he had discussed the impact of the guidelines with his attorney and that he understood the court would not be able to determine the guidelines sentence until after completion of his presentence report. Defendant also stated that he understood that if the court imposed a sentence more severe than he expected, that fact by itself would not be sufficient to set aside the plea. U.S. v. Knorr, 942 F.2d 1217 (7th Cir. 1991).
7th Circuit holds defendant may not rely upon plea agreement containing incomplete criminal history. (790) Defendant contended that the government breached his plea agreement by recommending he be classified in criminal history category III, rather than criminal history category I, as set forth in the plea agreement. The 7th Circuit found no breach. The plea agreement was based upon information “presently available” to the government. Defendant had not revealed two prior convictions for driving while intoxicated, which convictions were not discovered until the probation office conducted its presentence investigation. Defendant could not rely upon a plea agreement entered on the basis of an incomplete criminal history. U.S. v. Osborne, 931 F.2d 1139 (7th Cir. 1991).
7th Circuit holds plea agreement did not require government to deliver forfeited property free of encumbrances. (790) Defendant’s plea agreement provided for the forfeiture, sale and disposition of his business and farm assets, including the delivery of 21 head of forfeited cattle to defendant’s daughters. Defendant claimed that because the plea agreement had a clause requiring the payment of all liabilities and encumbrances of his farm with proceeds from the sale of forfeited farm assets, the government was required to pay the encumbrances on the cattle delivered to his daughters. The 7th Circuit rejected this interpretation of the plea agreement. The plea agreement provided that the proceeds from the sale of assets were to be used to satisfy the encumbrances on the assets being disposed of by sale. The encumbrances on the assets being distributed in kind did not need to be satisfied. Marx v. U.S., 930 F.2d 1246 (7th Cir. 1991).
7th Circuit finds no breach of plea agreement in government’s delay in delivering forfeited cattle. (790) Defendant’s plea agreement provided for the delivery of 21 head of forfeited cattle to defendant’s daughters. The cattle were to be delivered to the daughters shortly after sentencing. While 19 of the cattle were delivered promptly, the remaining two were not delivered until seven months after sentencing. The 7th Circuit rejected defendant’s claim that this delay was a breach of the plea agreement. The plea agreement provided that the cattle were forfeited to the government. The government had a statutory obligation acknowledged in the plea agreement to protect third-party interests and claims with respect to the forfeited assets. As such, the government delayed delivery of the two cows pending resolution of claims filed by lienholders under § 853(n). The delay in delivery of the cows until after the resolution of these claims was consistent with the parallel obligations placed upon the government. Marx v. U.S., 930 F.2d 1246 (7th Cir. 1991).
7th Circuit finds district court need not consider defendant’s sentence expectations prior to denying motion to withdraw plea. (790) The 7th Circuit found no abuse of discretion in the district court’s denial of his motion to withdraw his guilty plea without considering evidence of defendant’s expectation of his likely sentence. Before accepting the plea the district court conducted an extensive hearing, at which defendant admitted that he understood that his sentence would depend upon a number of factors and that the government was not bound to make any recommendation as to the specific sentence he would receive. Defendant was told he could be sentenced up to five years, and that he would have no right to withdraw his plea if his sentence was more severe than he expected. Allowing defendant to withdraw his plea because of “secret expectations that he harbored in the face of his directly contradictory sworn testimony would undermine the strong societal interest in the finality of guilty pleas.” U.S. v. Scott, 929 F.2d 313 (7th Cir. 1991).
7th Circuit finds no breach of plea agreement in government’s recommendation of sentence at upper end of guideline range. (790) Defendant provided what the government termed “complete and valuable information.” However, the government did not move for a downward departure under guideline § 5K1, but instead recommended the upper end of the guideline range. The 7th Circuit found no breach of the plea agreement. The government told the court about defendant’s cooperation, but also said that he qualified for an upward departure based on his criminal history. Because of defendant’s substantial cooperation, the government decided to forego seeking the upward departure. Under the terms of the plea agreement, the government was permitted to recommend a sentence up to and including the statutory maximum of 20 years. In addition, the plea agreement did not require the government to move for a downward departure for substantial assistance. U.S. v. Spillman, 924 F.2d 721 (7th Cir. 1991).
7th Circuit holds that guidelines do not establish “mandatory minimum” penalties for purposes of Rule 11(c)(1) plea agreements. (790) Defendant sought reversal of his sentence because the district court did not inform him of the statutory minimum he faced on his drug conviction as required by Rule 11(c)(1). The 7th Circuit rejected his argument, ruling that because of judicial discretion in granting departures, the guidelines do not impose a “mandatory minimum penalty” within the meaning of Rule (1)(C)(1). Further, due process does not require counts to predict the defendant’s sentence. Defendant was adequately informed four months before sentencing how the guidelines would be applied, and any failure to inform defendant of the precise range was harmless. U.S. v. Salva, 902 F.2d 483 (7th Cir. 1990).
7th Circuit holds that failure to inform defendant of applicable sentencing range does not render guilty plea invalid. (790) Defendant agreed to plead guilty to violating 21 U.S.C. § 841(a)(1), but no agreement as to the sentence was made. The 7th Circuit affirmed the guideline sentence holding that neither Fed. R. Crim. P. 11(c)(1) as it existed at the time of the sentencing, nor its December 1989 amendment (which was not applicable in this case) would require a court taking a plea to inform the defendant of the guideline sentence to be imposed or even to predict what the sentence might be. The court suggested, however, that district courts defer taking guilty pleas until a pre-sentence report has been prepared and discussed with the defendant. This practice, which is permissible under Fed.R.Crim.P. 11(e)(1)(B) and guidelines § 6B1.1(c) would avert problems such as this one. U.S. v. Alvarez-Quiroga, 901 F.2d 1433 (7th Cir. 1990).
8th Circuit upholds variance despite government’s breach of plea agreement. (790) Defendant and his twin brother engaged in a scheme in which they would steal checks, forge checks, and purchase merchandise, then return the merchandise for cash. He pled guilty pursuant to a plea agreement that prevented the government from seeking an above-guideline sentence. Although his guideline range was 33-41 months, the government breached the agreement and asked for a sentence of at least 85 months, arguing that defendant was the primary motivator and had a criminal history category similar to his twin brother, who had also received an 85-month sentence. The district court varied upward because of defendant’s criminal history and his role as the leader of the conspiracy, and sentenced defendant to 85 months. The Eighth Circuit held that the sentence was reasonable. The plea agreement did not bind the district court, and there was no indication that, but for the government’s comments, the district court would not have varied upward. The district court acknowledged defendant had a lesser criminal history than his brother, but also focused on defendant being a leader and, unlike his brother, having violent felonies in his criminal history. The court made it clear that it viewed the brothers as equally culpable in the conspiracy. U.S. v. Sayles, __ F.3d __ (8th Cir. June 6, 2014) No. 13-1834.
8th Circuit finds government did not breach plea agreement by failing to move for acceptance credit. (790) Defendant pled guilty to conspiracy to distribute 500 grams or more of methamphetamine. How¬ever, after reaching a plea agreement with the government, defendant wrote letters to the district court in which he denied having distributed 500 grams or more and asked to be convicted for a lower amount. At sentencing, the district court denied defendant an acceptance of responsibility reduction. Defendant appealed, arguing that the prosecution breached the plea agreement by failing to move for a three-level acceptance of responsibility reduction, and by agreeing with the district court’s calculation of a drug quantity amount higher than in the plea agreement. The Eighth Circuit disagreed. By writing letters to the district court, defendant exhibited conduct inconsistent with acceptance of responsibility and potentially in breach of his plea agreement. Defendant did not demonstrate that he was prejudiced by the government’s having agreed to the district court’s finding of a base offense level higher than that contained in defendant’s plea agreement. U.S. v. Rendon, 752 F.3d 1130 (8th Cir. 2014).
8th Circuit allows government to use proffer statements to rebut defendant’s argument at sentencing. (790) Defendant pled guilty to conspiring to manufacture and distribute methamphetamine. He argued that the district court used information in his proffer agreement to determine his guideline range, in violation of § 1B1.8(a). Where the government agrees that self-incriminating information in a proffer cannot be used to determine a defendant’s guideline range, § 1B1.8(a) limits the sentencing court’s use of such information except “to the extent provided in the agreement.” Here, the agreement stated that self-incriminating statements could not be used at sentencing, but it listed exceptions, including “to rebut any factual position taken by or on [defendant’s] behalf in connection with sentencing issues or for any other reason.” The Eighth Circuit upheld the court’s use of the proffer statements, finding that the exception applied here. At sentencing, defendant claimed his girlfriend’s pseudoephedrine purchases were not attributable to him. Drug quantity is a question of fact. The government used his proffer statements about meth use and distribution to rebut defendant’s factual position about drug quantity, which was permitted under the agreement. U.S. v. Loesel, 728 F.3d 749 (8th Cir. 2013).
8th Circuit says defendant waived right to appeal whether sentence was improper. (790) Defendant’s plea agreement provided that he waived his right to appeal, except for the ability to “appeal any decision by the Court to depart upward pursuant to the sentencing guidelines as well as the length of his sentence for a determination of its substantive reasonableness should the Court impose an upward departure or an upward variance pursuant to 18 U.S.C. § 3553(a).” The agreement also stated that the charged offense carried a mandatory minimum sentence of 10 years in prison and a maximum sentence of life, a $10 million fine, or both, and a term of supervised release. Nonetheless, defendant appealed his 121-month sentence, arguing for the first time on appeal that the plea agreement was ambiguous as to the mandatory minimum for the offense. The Eighth Circuit held that the waiver was valid, and dismissed the appeal. At the change-of-plea hearing, the court confirmed that defendant had reviewed the plea agreement with counsel prior to signing and confirmed his understanding of the appeal waiver. U.S. v. Guzman, 707 F.3d 938 (8th Cir. 2013).
8th Circuit finds no breach even though government did not recommend acceptance reduction. (790) Defendant pled guilty to rape under a plea agreement that stated that the government would recommend an acceptance of responsibility reduction if he accepted responsibility for his crime during his presentence interview. Defendant admitted in a signed statement of facts that he had entered the victim’s bedroom, removed her clothing as she slept, and raped her. However, when interviewed by the probation officer, defendant altered his account of the rape, stating that he had been planning to leave the victim’s house, but she told him to stay, wanted to have sex with him, pulled him into her bedroom, and removed his clothes. Based on these statements, the government argued against a reduction for acceptance of responsibility. The Eighth Circuit rejected defendant’s argument, raised for the first time on appeal, that the government breached the plea agreement by opposing a reduction for acceptance of responsibility. The government’s promised recommendation was contingent on defendant demonstrating that he had accepted responsibility for his crime. Defendant’s claim during his presentence interview that the victim had been the aggressor and had screamed when he tried to leave showed that he did not accept responsibility. U.S. v. Birdhorse, 701 F.3d 548 (8th Cir. 2012).
8th Circuit finds government did not breach plea agreement by opposing request for variance. (790) Defendant pled guilty to arson. As required by the plea agreement, the government recommended a sentence at the low end of the 37-46 month guideline range. Defendant requested a downward departure or variance, which the government opposed. The district court departed upward to 60 months. Defendant argued the government, while technically complying with its obligation to recommend a sentence at the low end, violated the agreement by opposing his request for a downward variance. He asserted that the government’s arguments in opposition to his request mirrored the justifications used by the district court in departing upward. The Eighth Circuit disagreed. Twice during the sentencing hearing, the government complied with its obligation to recommend a sentence at the low end of the range. The plea agreement did not restrict the government from challenging defendant’s request for a below-guidelines departure. Even if defendant interpreted the government’s presentation to the court to be “less than enthusiastic, this lack of enthusiasm [did] not breach the agreement.” U.S. v. Mesteth, 687 F.3d 1034 (8th Cir. 2012).
8th Circuit rules failure to have defendant participate in Rule 35(b) hearing did not affect substantial rights. (790) Defendant was sentenced to 240 months. The government then filed a Rule 35(b) motion, recommending a 10-percent sentence reduction based on defendant’s substantial assistance. The district court held a telephonic hearing with government and defense counsel, but defendant was not present. The court then granted a 10-percent sentence reduction. Defendant appealed, arguing that his plea agreement created a due process right to participate in the Rule 35(b) hearing, and that the government breached the agreement by allowing the Rule 35(b) hearing to proceed in his absence. The Eighth Circuit construed the agreement to provide defendant with the right to participate in the Rule 35(b) hearing, Thus the district court committed plain error, but the error did not affect defendant’s substantial rights. The Eighth Circuit distinguished U.S. v. Lewis, 673 F.3d 758 (8th Cir. 2011), on the ground that unlike Lewis, the defendant here failed to identify any additional information or arguments he would have made. He also did not identify anything to suggest that the district court would have granted a larger reduction if he had been personally allowed to participate. U.S. v. Hanshaw, 686 F.3d 613 (8th Cir. July 26, 2012).
8th Circuit allows prosecutor to support career offender increase despite promise not to file § 851 information. (790) Defendant pled guilty to drug charges under a plea agreement in which the government agreed “not to file an information with the Court seeking a sentencing enhancement of mandatory life imprisonment without release” and to “recommend that the defendant be sentenced within the applicable guideline range as determined by the court.” The PSR recommended that defendant be sentenced as a career offender, and the government supported that recommendation. The Eighth Circuit ruled that the government’s support of defendant’s career offender’s status did not breach the plea agreement. The promise “not to file an information … seeking a sentencing enhancement of mandatory life imprisonment” was an unambiguous reference to the filing of an information under 21 U.S.C. § 851, which would have authorized mandatory life imprisonment under 21 U.S.C. § 841(b)(1)(A) (iii). The government does not breach a plea agreement by promising not to file a § 851 information and then not opposing, or even supporting, a career offender increase under guideline § 4B1.1 based upon the same convictions that would have warranted a § 851 filing. U.S. v. Bailey, 677 F.3d 816 (8th Cir. 2012).
8th Circuit finds government’s unenthusiastic comments at sentencing did not breach plea agreement. (790) In defendant’s plea agreement, the government agreed to recommend a sentence at the low end of defendant’s advisory sentencing range. At sentencing, the government acknowledged that it was bound under the plea agreement to recommend a sentence at the low end of the guideline range, i.e. 360 months. It then commented that “They don’t get much worse than this, Your Honor. They don’t. And the defendant has made it abundantly clear by his own actions that he has a sexual preference for young children, and he’s never going to stop. Presumably 30 years will be enough to prevent him from ever doing this again.” The district court sentenced defendant to 480 months. The Eighth Circuit rejected defendant’s argument that the government breached the plea agreement to recommend a sentence at the bottom of the guideline range. The government made the recommendation it was obligated to make. The fact that the recommendation was made in other than the most enthusiastic terms did not breach the agreement. U.S. v. Baker, 674 F.3d 1066 (8th Cir. 2012).
8th Circuit reverses because Rule 35(b) hearing in defendant’s absence violated plea agreement. (790) The government filed a Rule 35(b) motion to reduce defendant’s sentence due to his substantial assistance. A telephonic hearing was held on the Rule 35(b) motion. Defendant did not participate in the hearing, nor was he even aware that the motion had been filed. However, defendant’s counsel participated in the hearing, and did not object to defendant’s absence. The court granted the 24-month reduction requested by the government. When defendant learned that the Rule 35(b) hearing had been held in his absence, he filed a pro se motion complaining of “bad faith” on the part of the Government and requesting a new Rule 35(b) hearing. The government argued that he waived his right to appeal in his plea agreement. The Eighth Circuit held the plain language of the plea agreement guaranteed defendant the right to participate in the Rule 35(b) hearing. By its terms the agreement gave defendant the right to make comments or present evidence at “any … proceedings related to this case.” By allowing the Rule 35(b) hearing to go forward without giving defendant the opportunity to participate, the government and the district court violated the plea agreement. U.S. v. Lewis, 673 F.3d 758 (8th Cir. 2011).
8th Circuit says government did not breach plea agreement by providing evidence of defendant’s obstructive conduct. (790) Defendant pled guilty to sexual abuse of a minor. He argued for the first time on appeal that the government breached his plea agreement by failing to adequately recommend an acceptance reduction and by undermining the reduction by presenting evidence of obstruction of justice. At sentencing, the government presented evidence that defendant had obstructed justice by pressuring the victim into recanting after inviting the victim over for Christmas. The government did not present any evidence directly on the acceptance of responsibility issue, and acknowledged that under the plea agreement, it was required to request an acceptance reduction. The Eighth Circuit found no clear breach of the plea agreement. The government does not implicitly agree to forgo pursuing an obstruction of justice enhancement when it agrees to recommend an acceptance reduction because both adjustments may apply in a given case. U.S. v. Yellow, 627 F.3d 706 (8th Cir. 2010).
8th Circuit finds error in advising of supervised release term did not affect guilty plea. (790) The AUSA correctly told defendant the maximum sentence for his offense was ten years, but incorrectly stated the maximum term of supervised release was three years. The statutory minimum and maximum terms of supervised release were five years and life, respectively. In order to show plain error in this context, defendant was required to show “a reasonable probability that but for the error, he would not have entered a guilty plea.” The Eighth Circuit ruled that defendant failed to make this showing. Defendant’s affidavit was unconvincing. It was improbable that a defendant’s decision to enter into a plea agreement would be driven by the potential term of supervised release rather than the potential ten-year term of actual incarceration. Moreover, defendant’s actions belied his claim that he ascribed high importance to the potential term of supervised release. He failed to object to the PSR’s statement that differed from the advice he previously received, and did not attempt to withdraw his plea or object at sentencing when the court imposed the five-year term of supervised release. U.S. v. Garcia, 604 F.3d 575 (8th Cir. 2010).
8th Circuit requires defendant to object at sentencing to prosecutor’s remarks as breach of plea agreement to preserve claim. (790) Defendant argued on appeal that the government breached his plea agreement by failing to recommend that defendant receive a two-level reduction for acceptance of responsibility. The government contended that defendant’s claim was not preserved because he did not object to the prosecutor’s remarks at sentencing. Defendant argued that a claim has been preserved for appeal as long as the district court had an opportunity to address it on the merits whether it be in the context of a motion under Rule 35 or other similar motion or in a motion for release pending appeal. The Eighth Circuit held that under the Supreme Court’s recent decision in Puckett v. U.S. 129 S.Ct. 1423 (2009), a defendant must object to a prosecutor’s remarks as being in breach of the plea agreement at the time of sentencing on order to preserve the claim for appeal. Because defendant did not do so, his claim should be reviewed for plain error. U.S. v. Smith, 590 F.3d 570 (8th Cir. 2009).
8th Circuit says government’s opposition to acceptance credit was not plain error breach of plea agreement. (790) Defendant argued for the first time on appeal that the government breached his plea agreement by failing to recommend that he receive a reduction for acceptance of responsibility. The government argued that defendant failed to comply with the plea agreement when he sent a letter to the probation officer that made several misleading or untrue statements. Defendant claimed in the letter that he believed his 1981 pardon resulted in the reinstatement of his gun rights. However, he continued to engage in unlawful conduct even after he was advised by ATF agents that he was a prohibited person and could not be involved in firearms sales. Defendant’s letter also implied that his only misdeed was “touching” his co-defendant’s guns, when he actually negotiated sales for his co-defendant’s business. The Eighth Circuit held that the government’s recommendation against the acceptance reduction did not amount to a plain error breach of the plea agreement. The plea agreement did not preclude the government from making a good faith argument that defendant did not satisfy one or more of the conditions entitling him to the recommendation. U.S. v. Smith, 590 F.3d 570 (8th Cir. 2009).
8th Circuit reverses for failure to inform defendant of minimum and maximum sentence during plea colloquy. (790) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). At his plea hearing the AUSA advised defendant, at the request of the court, that the maximum penalty was ten-years’ imprisonment, but that if defendant was found to be an armed career criminal, there was a possibility of a minimum sentence of 15 years’ imprisonment. The Eighth Circuit held that the court erred by failing to inform defendant of the maximum and minimum sentence he faced. If defendant qualified as an armed career criminal sentence, a 15-year minimum sentence was mandatory, not just a mere “possibility.” The prosecutor’s language “substantially diminished and downplayed the seriousness of the actual situation defendant faced …” In addition, neither the district court nor the prosecutor informed defendant of the maximum sentence he faced – life in prison – should he be found to be an armed career criminal. The error was not harmless, even though defendant was only sentenced to 15 years. U.S. v. Gray, 581 F.3d 749 (8th Cir. 2009).
8th Circuit enforces broad waiver of appeal in plea agreement. (790) Defendant pled guilty to drug charges. Despite a waiver of appeal in his plea agreement, defendant argued on appeal that the district court committed procedural errors in setting his 480-month sentence. The Eighth Circuit dismissed the appeal, ruling that the appeal fell within the scope of the waiver, that the waiver was knowing and voluntary, and that defendant failed to show that enforcement of the waiver would result in a miscarriage of justice. The waiver was broad and the sentence imposed, while lengthy, did not exceed the statutory maximum for the crime of conviction. At the plea colloquy, defendant acknowledged reading the plea agreement, discussing it with his attorney, and signing it. The court emphasized to defendant that the plea agreement included a waiver of defendant’s right to appeal a finding of guilt and his right to appeal his sentence. Defendant acknowledged that he understood those consequences. According to the terms of the agreement, defendant’s breach of the agreement did not absolve him of his duties under the agreement. U.S. v. Sisco, 576 F.3d 791 (8th Cir. 2009).
8th Circuit holds that failure to recommend acceptance reduction as required by plea agreement was not plain error. (790) Pursuant to a plea agreement, defendant pled guilty to one count of abusive sexual contact with a child and the government agreed to recommend an acceptance of responsibility reduction. Before the plea hearing, defendant sent a letter to the district court and the probation officer in which he denied that force was used and insisted the relationship was consensual. At sentencing, when asked by the court about its position on the acceptance matter, the prosecutor stated that “my hands are somewhat tied,” and noted that the plea agreement clearly stated that the government agreed to the acceptance reduction. She further expressed her belief “that the court [was] on firm ground in not giving acceptance.” At no time did the prosecutor affirmatively recommend the acceptance reduction. Although it was a close question, the Eighth Circuit held that the government’s failure to recommend the acceptance reduction was not plain error. The two positions defendant took were “miles apart.” The government’s statement was equivocal. In light of these circumstances, any error here was not clear or obvious. U.S. v. Jeffries, 569 F.3d 873 (8th Cir. 2009).
8th Circuit reviews claim of breach of plea agreement for plain error where not raised below. (790) In defendant’s plea agreement, both parties agreed that his base offense level was 20. The PSR, however, concluded that defendant had an additional qualifying felony, and recommended a base offense level of 24. At sentencing, the prosecutor stated that the “correct” offense level was 24. Defendant did not object, although he later appealed his sentence. The government moved to dismiss the appeal, citing the waiver of appellate rights in the plea agreement. The Eighth Circuit held that when a defendant seeks to avoid an appellate waiver contained in a plea agreement by arguing, for the first time on appeal, that the government breached the plea agreement, it will review the forfeited claim under the plain error test of Fed.R.Crim.P. 52(b). Here, the government breached the agreement by advocating a higher offense level that it agreed to in the plea agreement. However, defendant did not show that the breach affected his sentence. There was no indication that but for the government’s comments, the district court would not have adopted the base offense level in the PSR. U.S. v. Lovelace, 565 F.3d 1080 (8th Cir. 2009).
8th Circuit holds .government did not breach plea agreement by advocating enhancement not discussed in agreement. (790) Defendant pled guilty to attempting to entice a minor into engaging in illegal sexual conduct. In his plea agreement, the parties stipulated the various guidelines calculations. The agreement was negotiated without any consideration of U.S.S.G. § 4B1.5. The PSR and an addendum were prepared, and neither party objected to the guidelines calculations. However, in a second addendum to the PSR, the probation office suggested, for the first time, that defendant was subject to an enhancement under § 4B1.5. Both parties filed briefs. The government, despite not having objected to the initial or first-amended PSR, and admitting that it had previously been unaware of § 4B1.5, adopted the position of the probation office and advocated for the application of § 4B1.5(a). The Eighth Circuit held that government’s advocacy for the § 4B1.5 enhancement did not breach the plea agreement. Defendant’s plea agreement only stipulated to his base offense level. “Although the parties were free to do so, they did not address possible adjustments from Part B of Chapter four,” which included the enhanced offense levels for repeat and dangerous sex offenders against minors under U.S.S.G. § 4B1.5. The agreement limited its scope to issues explicitly addressed therein and had no effect on any unmentioned Sentencing Guideline issues. As to any unmentioned issues, the parties were “free to advocate their respective positions at the sentencing hearing.” U.S. v. Leach, 491 F.3d 858 (8th Cir. 2007).
8th Circuit holds Rule 11 did not require court to discuss applicability of specific guideline provisions. (790) Defendant was convicted of drug charges and sentenced as a career offender. He argued that the court committed plain erred by not informing him at his plea hearing that it would not follow the offense level recommendations in the plea agreement if defendant qualified as a career offender. The Eighth Circuit held that the district court complied with Rule 11(b)(1)(M) and committed no error. The court explained to defendant in some detail that the Sentencing Guidelines applied in his case, that the guidelines provided for ranges of imprisonment, that the guidelines allowed for departures, and that the guidelines were now advisory. Defendant said he understood. This colloquy satisfied the requirements of Rule 11(b)(1)(M). The Rule does not require the court to discuss the applicability of specific guideline provisions. U.S. v. Jackson, 462 F.3d 899 (8th Cir. 2006).
8th Circuit holds that government breached plea agreement by advocating career offender enhancement. (790) Defendant’s plea agreement clearly bound both the government and defendant to recommend an adjusted offense level of 25 for his conduct. Instead, once the PSR calculated defendant’s adjusted offense level to be 29 due to the application of the career offender enhancement, the government followed suit. In its written and oral presentation to the court, the government actively advocated for the increase, an outcome different from the one it had promised defendant. In response to defendant’s objections, the government filed a memorandum with the court disputing that it had agreed the career-offender enhancement was inapplicable. The Eighth Circuit held that the government breached the plea agreement by advocating the career offender enhancement. The fact that the court asked for the government’s position did not excuse the government for failing to abide by the plea agreement. U.S. v. Fowler, 445 F.3d 1035 (8th Cir. 2006).
8th Circuit holds that plea agreement required government to move for additional acceptance reduction. (790) The government agreed, as part of defendant’s plea agreement, to recommend that he receive an acceptance of responsibility reduction “unless there is significant evidence disclosed in the presentence investigation to the contrary.” If defendant met certain time constraints, the agreement further provided “and assuming U.S.S.G. § 3E1.1(b) applies, the United States will make a motion, pursuant to U.S.S.G. § 3E1.1(b) … to reduce defendant’s offense level by an additional level.” Defendant returned two days late to the community corrections facility where he was staying pending sentencing, and admitted to drinking alcohol and smoking marijuana over the course of the weekend. The court nonetheless found that the two-level acceptance reduction was warranted. However, it ruled that it could not make the additional one-level reduction under § 3E1.1(b) because the government did not make a motion. The Eighth Circuit held that the government breached the plea agreement by failing to move for the additional one-level acceptance reduction. The caveat in the first paragraph (“unless there is significant evidence disclosed in the presentence investigation to the contrary”) did not apply to the second paragraph. Once the district court granted the two-level reduction on its own motion, the government was obligated to move for the additional level reduction. However, defendant did not establish that the error affected his substantial rights (defendant did not raise the error below), and thus was not entitled to resentencing. Given the court’s treatment of the guidelines as advisory, and its extensive discussion of the myriad factor that went into sentencing determination, defendant did not demonstrate a reasonable probability that the court would have imposed a lesser sentence had the government moved for the additional reduction. U.S. v. Jensen, 423 F.3d 851 (8th Cir. 2005).
8th Circuit refuses to find that Apprendi waiver in petition to plead guilty was waiver of Booker rights. (790) The District of Nebraska requires every defendant seeking to plead guilty to file a petition to enter a plea of guilty. Defendant’s petition contained a waiver of his rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). The Eighth Circuit held that defendant did not waive his rights under U.S. v. Booker, 543 U.S. 220 (2005) through his signed petition to enter a plea of guilty. Although Booker is the logical extension of Apprendi, the waiver was not part of the plea agreement entered into between the government and defendant. The plea agreement signed by both the government and defendant contained a merger clause stating that no promises, agreements, or conditions had been entered into other than those set forth in the plea agreement. Thus, the waiver was not part of the plea agreement. Defendant preserved his Sixth Amendment claim. The same day he was sentenced, the Supreme Court handed down its decision in Blakely v. Washington, 542 U.S. 296 (2004). Defendant filed a motion to correct his sentence under Rule 35(a), arguing that his Sixth Amendment rights were violated. The district court denied the motion, and defendant instituted the current appeal. The panel reversed and remanded for resentencing consistent with Booker. U.S. v. Burling, 420 F.3d 745 (8th Cir. 2005).
8th Circuit says government breached agreement by arguing for use of guideline different from that stipulated in plea agreement. (790) Defendant pled guilty to being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1). Defendant and the government stipulated that the applicable guideline was § 2K2.1(a), which would have resulted in an offense level of 14. However, the probation officer calculated his offense level under §2K2.1(c), which applies if the defendant used or possessed the firearm in connection with the commission or attempted commission of another offense. Defendant objected at sentencing, and the court asked the prosecutor for his comments. The prosecutor responded by arguing that the facts to which defendant had stipulated established that he had committed felony assault. The Eighth Circuit held that the government breached the plea agreement by arguing in support of a sentence exceeding that allowed under the stipulated guideline. The argument that defendant’s factual stipulations supported felonious assault was essentially an argument that § 2K2.1(c)(1), rather than § 2K2.1(a), should apply. U.S. v. Thompson, 403 F.3d 1037 (8th Cir. 2005).
8th Circuit says defendant was entitled to be resentenced under advisory guideline scheme. (790) Defendant pled guilty to drug charges, and entered into a written plea agreement in which he stipulated to specific offense conduct and acknowledged that these admissions would be used to calculated his sentence under the guideline. Before sentencing, however, he objected to being sentenced under the guidelines, arguing they were unconstitutional based on Blakely v. Washington, 124 S.Ct. 2531 (2004). He renewed this argument on appeal. In U.S. v. Booker, 543 U.S. 220 (2005), the Supreme Court held that the mandatory aspects of the guidelines was unconstitutional. The Eighth Circuit held that because defendant preserved his challenge to the constitutionality of the guidelines, he was entitled to be resentenced under an advisory, rather than mandatory, guideline scheme. The panel rejected the government’s argument that because defendant’s sentence was based on facts he admitted or to which he stipulated, he could not challenge his sentence. The panel also rejected the government’s argument that defendant expressly waived in his plea agreement the right to make this constitutional challenged on appeal. Finally, the error was not harmless. Defendant was sentenced at the low end of his guideline range, and had it not felt bound by the guidelines, the court could have imposed a sentence as low as 60 months. U.S. v. Lea, 400 F.3d 1115 (8th Cir. 2005).
8th Circuit holds that failure to warn defendant that it could depart upward was not plain error. (790) After defendant pled guilty to drug charges, the government moved for an upward departure based on his criminal history. At sentencing, defendant moved to withdraw his plea on the grounds that the government had violated his plea agreement by moving for an upward departure. The district court disagreed, and granted the government’s motion. The Eighth Circuit held that the district court did not plainly err by failing to warn defendant at his plea hearing that it had discretion to depart from the Sentencing Guidelines. The district court informed defendant of the consequences of pleading guilty despite not following the exact requirements of Rule 11. The risk of receiving a higher sentence was also discussed in the plea agreement, which defendant acknowledge he had read and understood. Defendant he did not show that he would have gone to trial instead of pleading guilty if he had known of the possibility of a departure. The government’s upward departure motion did not violate language or the spirit of the plea agreement. The agreement stated that the parties could “advocate any position at the sentencing hearing regarding any sentencing issues not addressed in this agreement,” and the government reserved the right to “make any recommendations it deems appropriate regarding the disposition of this case.” U.S. v. Phillips, 390 F.3d 574 (8th Cir. 2004).
8th Circuit holds that government made no sentencing promises outside plea agreement. (790) Defendant contended that the prosecutor induced him to plead guilty by promising him a sentencing recommendation below the maximum 10-year sentence he faced under state law. The Eighth Circuit found that the government made no sentencing promises to defendant in exchange for his guilty plea. Defendant signed a plea agreement which did not contain any promise or guarantee of a departure. Moreover, at his plea hearing, defendant acknowledge no promises were made by the government other than those stated in the plea agreement. It was also significant that defendant did not appeal the court’s § 5K1.1 downward departure to 170 months. U.S. v. Sykes, 356 F.3d 863 (8th Cir. 2004).
8th Circuit holds that defendant waived right to challenge government’s breach of plea agreement. (790) Defendant’s plea agreement stated that the U.S. Attorney’s office would “recommend that the Court consider imposing a sentence of imprisonment at the lower end of the appropriate guideline range.” At sentencing, however, the assistant U.S. Attorney did not bring the agreed recommendation to the attention of the district judge, even though the court made an upward departure. However, defendant failed to object or otherwise comment on the government’s silence. It would be unfair to permit defendant “to sit idly by at the time of sentencing, when by exercising any one of the courses o action open to him he could have obtained a clarification and correction of the government’s position….” U.S. v. Cohen, 60 F.3d 460, 462 (8th Cir. 1995). Thus, the Eighth Circuit ruled that defendant waived his right to appeal this issue. U.S. v. Archambault, 344 F.3d 732 (8th Cir. 2003).
8th Circuit holds that defendant did not establish that incorrect advice caused him to reject plea agreement. (790) Defendant filed a 28 U.S.C. § 2255 motion, alleging that he received ineffective assistance of trial. He contended that trial counsel misadvised him about his sentencing exposure if he accepted the government’s plea offer and his sentencing exposure if he was found guilty at trial, which caused him to proceed to trial and receive a longer sentence than he would have received if he had pleaded guilty. The Eighth Circuit ruled that defendant was not denied effective assistance of counsel. The court agreed that defendant was misadvised about his sentencing exposure. However, this misinformation did not make defendant any less likely to accept the plea offer than he would have been if he had received accurate advice. First, defendant was advised that by pleading guilty, he would limit his exposure to 36-48 months, which was a more enticing prospect than the 60 months he would have been told he faced if counsel had been accurate. Second, trial counsel’s inaccurate numbers nonetheless accurately conveyed the concept that by pleading guilty, defendant would limit his exposure to about 1/3 of the sentence he would face if found guilty at trial. Moreover, trial counsel’s affidavit described his impressions of defendant’s unwillingness to consider pleading guilty. The record corroborated this impression since defendant maintained his innocence at all the states of his criminal prosecution and showed no indication that he would be willing to admit his guilt. Sanders v. U.S., 341 F.3d 720 (8th Cir. 2003).
8th Circuit rules court had no discretion to deny motion to withdraw plea since plea had not yet been accepted. (790) On August 14, 2002, defendant pled guilty to assault with a dangerous weapon. About three weeks later, he moved to withdraw his plea. On January 29, 2003, the court held a hearing at which it denied defendant’s motion to withdraw his plea and sentenced him to 100 months imprisonment. The Eighth Circuit ruled that the court had no discretion to deny the motion, since the plea had not yet been accepted. Federal Rule of Criminal Procedure 11(d) replaced Rule 32(e) on December 1, 2002 as the section governing plea withdrawal. Defendant’s case was pending when the Amendments to the Rules of Criminal Procedure became effective, and it was just and practicable to apply amended Rule 11. Under Rule 11(d)(1), a defendant may withdraw his plea before the court accepts the plea for any reason or for no reason. The district court here had not accepted defendant’s guilty plea. At the hearing, the court stated that if the plea agreement was “vacated or rejected at the time of sentencing … then you would go back to trial on all of the original charges.” The court also advised defendant that the government reserved the right to withdraw from the agreement “if you commit any offense before I accept the guilty plea.” Judge Erickson dissented, arguing that the court actually accepted the guilty plea while deferring its decision on whether to accept the plea agreement. U.S. v. Head, 340 F.3d 628 (8th Cir. 2003).
8th Circuit says defendant could not use “illegal sentence” exception to appeal waiver where sentence was within statutory range. (790) Defendant pled guilty in October 2001 to illegally reentry after deportation, and agreed to waive his right to appeal. In his plea agreement, defendant had agreed to a 16-level increase because his deportation occurred after a drug conviction that was an “aggravated felony.” At sentencing, however, the parties did not notice that U.S.S.G. § 2L1.2 had recently been amended to create several gradations below the 16-level enhancement defendant received. Following the imposition of sentence, defendant appealed, arguing that the amendment would have reduced his sentence. He argued that the waiver of appeal should not be enforced because he received an illegal sentence. The Eighth Circuit ruled that the illegal sentence exception to the general enforceability of an appeal waiver was not applicable because defendant received a sentence within the statutory limit of 20 years imprisonment. See U.S. v. Andis, 333 F.3d 886 (8th Cir. 2003) (en banc). “[A]n allegation that the sentencing judge misapplied the Sentencing Guidelines or abused his or her discretion is not subject to appeal in the face of a valid appeal waiver.” U.S. v. Benitez-Diaz, 337 F.3d 1080 (8th Cir. 2003).
8th Circuit holds that defendant was not entitled to withdraw guilty plea. (790) Defendant pled guilty to conspiring to distribute meth in violation of 21 U.S.C. §§ 841(a)(1) and 846. The district court sentenced defendant as a career offender to 360 months. On appeal, the court affirmed the career offender finding but remanded because the government breached the plea agreement. On remand, defendant moved to withdraw his guilty plea, asserting numerous justifications, including a new claim that the plea was not knowing and voluntary because he was unaware of his career offender status when he entered the plea. The Eighth Circuit upheld the denial of the motion. Although counsel did not advise defendant regarding the career offender provisions of the guideline, it was unlikely that advice would have affected defendant’s decision to plead guilty. Defense counsel testified that the expectation of a downward departure motion from the government was the principal reason she urged defendant to plead guilty. In fact, defendant did not make a timely pre-sentence motion to withdraw the plea on this ground when he first learned from the PSR that he would likely be sentenced as a career offender. Moreover, this was not a true case of “unfulfillable promises” because the sentencing stipulations in the plea agreement were clearly stated to be non-binding on the sentencing court. U.S. v. Gomez, 326 F.3d 971 (8th Cir. 2003).
8th Circuit holds that consecutive sentence recommendation was not breach of plea agreement. (790) At the time of the current sentencing, defendant had been sentenced to a four-year probation revocation sentence, and a consecutive 57 months for a counterfeiting charge. After defendant and the government presented their oral plea agreement to the court, the government declared that it had no opposition to the current sentence running concurrently. During the later sentencing hearing, the court asked the parties whether their prior agreement as to a concurrent sentence referred to defendant’s probation revocation sentence, his counterfeiting sentence, or both. The parties admitted that they had not specifically discussed that issue. In light of the confusion, the government urged the court to run the new sentence consecutively to the probation revocation sentence. The Eighth Circuit held that the recommendation by the government was not a breach of the plea agreement. In the order denying defendant’s § 2255 motion, the district court clearly stated that there had been no agreement between the parties on whether defendant’s current sentence should run consecutively to the probation revocation sentence. Moreover, even if the parties had agreed to concurrent sentences, the district court was not bound by the agreement. Finally, U.S.S.G. § 5G1.3 mandated that the current sentence run consecutively to the probation revocation sentence. White v. U.S., 308 F.3d 927 (8th Cir. 2002).
8th Circuit rejects claim or oral promise outside written plea agreement. (790) Defendant claimed that an oral agreement was made during plea negotiations but not recorded in the written agreement he signed. He alleged that the government promised a departure greater than the 17-year minimum set forth in the plea agreement. The government denied this promise was made. The district court found that the written plea agreement reflected the totality of the parties’ understanding of what information defendant had agreed to provide and what the government had agreed to recommend in terms of a sentence reduction. The Eighth Circuit found no error. The record indicated that in light of defendant’s less than cooperative behavior, the government had serious reservations about recommending a reduction in the sentence to 204 months. Likewise, the district court stated that it “was sorely tempted to make that reduction down only to 20 years” because of defendant’s lack of cooperation and his manner of testifying, which the district court found was designed to make defendant look unbelievable before the jury. U.S. v. Miller, 295 F.3d 824 (8th Cir. 2002).
8th Circuit says defendant could withdraw from agreement requiring illegal sentence for first-degree murder. (790) The federal murder statute, 18 U.S.C. § 1111, dictates a sentence of death or life imprisonment for first-degree murder. See also USSG § 2A1.1 (setting base offense level of 43 corresponding to life sentence for first-degree murder). Nevertheless, and despite abundant evidence that defendant committed a premeditated murder, the government agreed to recommend a 35-year sentence in exchange for defendant’s guilty plea to first degree murder. Later, he attempted to withdraw from his plea, contending that his attorney coerced him to take the deal. The court denied defendant’s motion, finding no coercion, and then imposed the agreed-upon 35-year sentence. The Eighth Circuit held that the 35-year sentence for the first-degree murder was illegal. Congress has provided two limited mechanisms for departing below a statutorily prescribed penalty: a departure for substantial assistance and the safety valve provision. Neither provision was applicable here. There can be no plea bargain to an illegal sentence. Even when a defendant, prosecutor and court agree on a sentence, the court cannot give the sentence effect if it is not authorized by law. Thus, when a defendant has entered a plea bargain that contemplates an illegal sentence, the defendant is generally entitled to withdraw the guilty plea, unless the sentence can be corrected to give the defendant the benefit of his bargain. U.S. v. Greatwalker, 285 F.3d 727 (8th Cir. 2002).
8th Circuit holds that failure to make § 5K1.1 motion after target’s death did not breach plea agreement. (790) Pursuant to his plea agreement, defendant provided the government with information concerning the activities of his brother-in-law Lewis and other co-conspirators in the form of debriefings and testimony before the grand jury. However, before Lewis could be indicted, he died. The government declined to move for a substantial assistance departure. The Eighth Circuit held that the government’s failure to file a motion for a substantial assistance departure did not breach the plea agreement. The plea agreement expressly stated that the decision whether or not to file the motion was entirely within the discretion of the government. The discretionary decision may be challenged only if the defendant makes a “substantial threshold showing” of prosecutorial discrimination or irrational conduct. Although Lewis’s death was a matter over which defendant had no control, and defendant may have provided assistance to the full extent of his abilities, whether the assistance provided was “substantial” was for the government to determine. U.S. v. Amezcua, 276 F.3d 445 (8th Cir. 2002).
8th Circuit holds that government breached plea agreement by not recommending acceptance reduction. (790) Before sentencing, the probation officer filed a PSR addendum, describing letters intercepted by U.S. Marshals in which defendant requested that his wife warn co-conspirators of the government’s investigation, advised her how to traffic in drugs without getting caught, and threatened a co-conspirator. Because of these letters, the government withdrew its recommendation for an acceptance of responsibility reduction. The Eighth Circuit held that the government breached defendant’s plea agreement by not recommending the acceptance reduction. The plea agreement required the government to recommend the reduction and the government did not do so. Although the government claimed that defendant breached the agreement first by writing the drug-related letters to its wife, defendant argued that he wrote the letters before signing the agreement and could not breach a promise he had not yet made. If so, defendant did not break his promise and the government was not excused from his obligations. Moreover, even if defendant did break his promise, the government’s choice of remedy was inappropriate. The prosecutor should have moved to withdraw from the agreement rather than breach the agreement at sentencing. U.S. v. Gomez, 271 F.3d 779 (8th Cir. 2001).
8th Circuit says plea agreement did not obligate government to object to PSR’s recommendations. (790) In defendant’s plea agreement, the government agreed to recommend that defendant receive a three-level acceptance of responsibility reduction. The PSR, however, recommended against the reduction and recommended an obstruction increase based on defendant’s attempt to get a witness to lie. At sentencing, the prosecutor noted that defendant filed a motion to withdraw his guilty plea, and had filed over a dozen objections that directly attacked the factual basis of his plea, but that nonetheless, it was obligated to recommend an acceptance of responsibility reduction. The court refused to grant defendant the acceptance reduction, and imposed an obstruction of justice increase. The Eighth Circuit ruled that the government did not breach the plea agreement by failing to object to the PSR, even though the report recommended no reduction for acceptance of responsibility and an increase for obstruction of justice. The agreement did not obligate the government to object to recommendations made in the PSR; it only required the government to recommend the acceptance reduction. The government made that recommendation; the government’s lack of enthusiasm did not breach the agreement. The government also did not breach the agreement by questioning the witness about defendant’s attempt to persuade her to lie to police. The agreement was silent on the issue of obstruction. Moreover, the court directed the government to address obstruction at the sentencing hearing. U.S. v. Has No Horses, 261 F.3d 744 (8th Cir. 2001).
8th Circuit refuses to infer from plea agreement’s silence that government waived leadership increase. (790) Defendant’s initial plea agreement explicitly contemplated that he would receive a § 3B1.1(a) leadership enhancement. The court allowed defendant to withdraw his plea because he objected to the increase. His second plea agreement was silent on the subject of any § 3B1.1 enhancement. The PSR, however, recommended the increase. Based on this recommendation and the testimony of two co-defendants at sentencing, the district court pronounced that it was inclined to apply the recommended increase. The Eighth Circuit held that the government did not breach the plea agreement by seeking a leadership enhancement. The second plea agreement was silent as the propriety of the § 3B1.1 increase. Although defendant contended that the government, in negotiating the second plea agreement, promised not to pursue the enhancement, the government denied that such a promise was made. Moreover, the agreement provided that: “This document completely reflects all promises, agreements and conditions made between the parties.” There was no evidence supporting defendant’s assertion that the government agreed to waive the increase. U.S. v. Austin, 255 F.3d 593 (8th Cir. 2001).
8th Circuit holds that stipulation waived drug quantity challenge. (790) Members of a Los Angeles street gang transported cocaine powder from California to the Twin Cities, where they cooked the powder into crack and distributed it. Defendant was one of the conspiracy leaders responsible for drug activities in California. He argued that the district court erred in finding that all of the drugs attributed to the conspiracy, including 1054 grams of crack purchased by an undercover officer in the Twin Cities, and 2477 grams of cocaine powder seized at the Twin Cities airport, were reasonably foreseeable to him as a California conspirator. The Eighth Circuit ruled that this contention was waived because defendant’s plea agreement provided that his base offense level was 36, and this was the base offense level actually used in determining his sentence. Moreover, the contention was without merit. In sentencing defendant, the district court stated that it had “heard the trial of the other defendants in this case” and found that the crack cocaine sales in Minnesota were reasonably foreseeable relevant conduct. The court was entitled to consider relevant conduct introduced at the trial of co-defendant Louis. The testimony of co-conspirator Atkins at that trial amply demonstrated that the crack cocaine sales, as well as the cocaine powder seized at the airport, were reasonably foreseeable to defendant as a leader of the conspiracy. U.S. v. Scott, 243 F.3d 1103 (8th Cir. 2001).
8th Circuit holds that government’s failure to file departure motion breached plea agreement. (790) Defendant’s plea agreement provided that if the government “concludes that you have provided substantial assistance … the United States shall file” a motion for a substantial assistance departure. The prosecutor did not make a departure motion, instead indicating, at the sentencing hearing, that she had in her possession, a motion for reduction of sentence under Rule 35(b). In the Rule 35(b) motion, filed immediately after sentencing, the government conceded defendant’s substantial assistance, but noted that defendant might be needed for further testimony, and stated that the government would request a hearing on the motion following completion of his cooperation. The Eighth Circuit held that the government’s failure to move for a substantial assistance departure breached the plea agreement. The executed agreement superseded the government’s otherwise broad discretion to make a departure motion. The government agreed to move for a departure under § 5K1.1 or 18 U.S.C. § 3553(e), or both, if in its sole discretion it determined that defendant had provided substantial assistance. The government exercised that discretion in defendant’s favor when, in its Rule 35(b) motion, it conceded that defendant had provided the requisite assistance. Once the government determined that defendant had provided substantial assistance, it was obligated to comply with its agreement to file a departure motion. U.S. v. Johnson, 241 F.3d 1049 (8th Cir. 2001).
8th Circuit holds that government’s candid admission did not breach plea agreement. (790) In accordance with defendant’s plea agreement, the government filed a § 5K1.1 substantial assistance motion recommending probation. At sentencing, defendant’s pretrial officer advised the court that defendant had missed at least 16 appointments in pretrial and presentencing release. During a discussion of the government departure motion, the government repeated that the plea agreement required it to ask the court for probation. The court then asked the prosecutor whether the knowledge of defendant’s pretrial conduct would have affected its sentencing recommendation. The prosecutor admitted “If I didn’t have this plea agreement, I wouldn’t make the recommendation of probation.” The Eighth Circuit held that the government’s comments did not breach the plea agreement. The government did not undercut its own departure motion, but merely gave a candid response to a question from the court. This was not improper. After making a motion for a downward departure pursuant to a plea agreement, the government may “advise the sentencing court if there are unrelated factors … that in the government’s view should preclude or severely restrict any downward departure relief.” Although defendant had already missed 11 appointments at the time of her plea agreement, defendant did not point to any evidence that the U.S. Attorney (as opposed to the Pretrial Services Office) actually knew of her delinquency when the plea agreement was struck. U.S. v. Nicholson, 231 F.3d 445 (8th Cir. 2000).
8th Circuit holds that court not required to advise of possibility of departure for consenting to deportation. (790) Defendant argued that the district court failed to inform him at the change-of-plea hearing that he could receive a downward departure by consenting to deportation, and his counsel failed to argue for such a departure at sentencing. The Eighth Circuit held that in taking his plea, the district court was not required to advise defendant of the possibility of receiving a downward departure by consenting to deportation. To the extent defendant sought to raise ineffective assistance of counsel, such a claim should be pursued in a 28 U.S.C. § 2255 proceeding. Defendant also contended that he was never informed of his eligibility for a downward departure based on the sentencing disparity that arises from differing prosecution and plea bargaining practices among federal districts. However, the case defendant relied on, U.S. v. Banuelos-Rodriguez, 173 F.3d 741 (9th Cir. 1999), has been withdrawn and is not the law of this circuit. Accordingly, no error occurred when defendant was not informed of his eligibility for a departure on this basis, since, in fact, he was not eligible for such a departure. U.S. v. Guzman-Landeros, 207 F.3d 1034 (8th Cir. 2000).
8th Circuit rules government had sufficient grounds to deny § 5K1.1 motion. (790) Defendant signed a plea agreement to cooperate and provide truthful information to the government. At her debriefing, defendant denied knowledge of her fiancé’s drug activity, denied using drugs and denied seeing them at their house. When asked whether money she entered into business accounts with false receipts was from drug trafficking activity, she replied “not specifically.” The government then ended the questioning. The Eighth Circuit ruled that defendant did not make a “substantial threshold showing” that the government’s refusal to make a § 5K1.1 motion was improperly motivated. Instead, defendant merely disagreed with the government’s appraisal of her truthfulness. It was not irrational for the government to view defendant’s answer “not specifically” as a denial of an element of the offense of conviction. This provided a sufficient ground for the government, under the plea agreement and the facts of the case, to make a good-faith refusal to file the § 5K1.1 motion. Additionally, the government could reasonably conclude any information defendant provided, even if truthful, did not amount to substantial assistance. Providing “truthful information” and providing “substantial assistance” are not interchangeable. U.S. v. Due, 205 F.3d 1030 (8th Cir. 2000).
8th Circuit rules that failure to advise of effects of supervised release would not have changed plea. (790) Defendant argued that the district court erred in accepting his plea because it did not advise him of the effect of his supervised release. Under Rule 11, a district court must inform a defendant of both the applicability of a term of supervised release and the effect of that term, including the consequences upon revocation. See U.S. v. Osment, 13 F.3d 1240 (8th Cir. 1994). The Eighth Circuit ruled that the court’s omission was harmless error. Unlike the defendant in Osment, who was not informed that he faced supervised release at all, defendant was told that he faced up to five years’ supervised release. Defendant’s decision to plead guilty was prompted by last-minute evidence obtained by the government. Given defendant’s knowledge that he faced five years’ supervised release, and the government’s evidence that negated his defense, the Eighth Circuit concluded that being told of the precise effect of violating supervised release would not have changed defendant’s mind about pleading guilty. U.S. v. Prado, 204 F.3d 843 (8th Cir. 2000).
8th Circuit denies reduction where defendant did not complete court-ordered alcohol treatment program. (790) The government promised, as part of defendant’s plea agreement, to recommend an acceptance of responsibility reduction “unless there is significant evidence disclosed in the presentence investigation to the contrary.” At the time the government entered into the agreement, it was aware that defendant had not completed a court-ordered alcohol treatment program. The Eighth Circuit held that the government violated the terms of the plea bargain by failing to make the required recommendation. Nonetheless, remanding this case would be futile. The government’s failure to make an oral recommendation at sentencing had little if any effect on the court’s decision to deny the reduction. Because defendant’s crime of involuntary manslaughter involved intoxication, his failure to complete the alcohol treatment program amounted to evidence that he did not yet appreciate the gravity of his criminal conduct. His premature exit from the program violated a court order and served as grounds to terminate his conditional release. Given these circumstances, the court’s decision to deny the reduction was not “without foundation.” U.S. v. Goings, 200 F.3d 539 (8th Cir. 2000).
8th Circuit denies reduction where defendant engaged in similar illegal conduct while on pretrial release. (790) Defendant opened bank accounts using false names, deposited checks drawn on closed account to create false balances, and withdrew money from the accounts. In a plea agreement, the government agreed to recommend an acceptance of responsibility reduction, but only if defendant exhibited conduct consistent with acceptance of responsibility. While on pretrial release, defendant opened a checking account at a Kansas City bank using a former address and a false social security number; deposited into the account four checks drawn on a California bank, all of which were ultimately returned due to insufficient funds, and wrote checks which exceeded the balance in the Kansas City account. Because defendant engaged in illegal conduct similar to the offense of conviction, the Eighth Circuit upheld the district court’s refusal to grant an acceptance of responsibility reduction. Moreover, the government did not breach the plea agreement by failing to recommend such a reduction. The recommendation was conditioned on defendant exhibiting conduct consistent with acceptance of responsibility, and reserved to the government the discretion to void the agreement if defendant engaged in any further criminal activity. U.S. v. Adams, 197 F.3d 1221 (8th Cir. 1999).
8th Circuit says government may consider refusal to testify at co-conspirators’ sentencing. (790) Defendant promised as part of his plea agreement to testify “before the Grand Jury and/or at any trial or other court proceeding …” As a direct result of his agreement to testify, two co-conspirators also pled guilty. Accordingly, the government filed a downward departure motion under § 5K1.1. However, it refused to make a motion under 18 U.S.C. § 3553(e) because defendant refused to testify at the co-conspirators’ sentencing hearings. The Eighth Circuit refused to compel the government to make such a motion. Defendant did not make a substantial threshold showing that the government acted unconstitutionally, irrationally, or in bad faith. His plea agreement did not entitle him to refuse to testify in the sentencing proceedings. Defendant may have been entitled to assert the privilege against self-incrimination in response to particular questions, but given his promise to testify against his co-conspirators at any type of proceeding, he was not entitled to assert a blanket privilege and refuse to take the stand at sentencing. The government legitimately considered his refusal to adhere to the terms of the agreement in assessing the quality of his assistance. U.S. v. Vernon, 187 F.3d 884 (8th Cir. 1999).
8th Circuit says government’s disclosure of defendant’s wrongful conduct did not breach agreement. (790) Defendant argued that his plea agreement should be vacated because the government breached the terms of the agreement. The Eighth Circuit found no breach. The government had agreed to move for a § 5K1.1 substantial assistance departure. The government did make such a motion, but also disclosed to the court defendant’s alleged attempt to implicate an innocent person in his drug conduct. On full disclosure of all the circumstances to the district court, the district judge, as a matter of discretion, declined to depart. There was no basis for relief. U.S. v. McKnight, 186 F.3d 867 (8th Cir. 1999).
8th Circuit says defendant’s expectation of lower sentence did not provide grounds for relief. (790) Defendant’s plea agreement said that the district court could impose a maximum sentence under the guidelines of 360 months to life. However, the colloquy between the prosecutor, defense counsel, and the court at defendant’s plea hearing suggested that a life sentence was not under contemplation. Nonetheless, the district court imposed an obstruction of justice enhancement based on defendant’s attempt to convince of a co-defendant to withdraw his guilty plea. This resulted in an offense level of 43, and a life sentence. Defendant argued that he was misled at his plea hearing as to the length of his sentence. The Eighth Circuit found no error. While some statements were made indicating a “reasonable expectation” of a sentence between 20 and 30 years, the plea agreement and colloquy indicated that defendant knew he faced a sentence of 360 months to life under the guidelines. Although defendant may have hoped the district court would have sentenced him below the guidelines based on his cooperation, that hope did not translate into a claim for relief. U.S. v. McKnight, 186 F.3d 867 (8th Cir. 1999).
8th Circuit upholds refusal to make § 5K1.1 motion where defendant continued to use drugs. (790) Prior to sentencing, defendant failed to appear for drug counseling four times and tested positive for cocaine four other times. The government refused to move for a substantial assistance departure because defendant had not revealed to the government that he had been using cocaine and had not revealed his source. The district court found the decision was within the government’s discretion under his plea agreement and that defendant had “ruined himself as a potential witness.” In U.S. v. Anzalone, 148 F.3d 940, reh’g. en banc granted, opinion vacated, 148 F.3d 940, opinion reinstated, reh’g. en banc denied, 161 F.3d 1125 (8th Cir. 1998), the government refused to file a downward departure motion after it heard that the defendant had recently used drugs. The Eighth Circuit reversed because the government’s decision not to file the motion “was for reasons other than the nature of Anzalone’s substantial assistance.” The Eighth Circuit found this case distinguishable from Anzalone. The government’s refusal here was based on its conclusion that defendant had not met his duty under the plea agreement because he did not keep the government apprised of his ongoing drug involvement or his sources and had undermined his usefulness as a potential witness. The government’s decision was based on its evaluation of the quality of defendant’s assistance. U.S. v. Wilkerson, 179 F.3d 1083 (8th Cir. 1999).
8th Circuit says reliance on erroneous legal advice does not entitle defendant to withdraw plea. (790) Defendant sought to withdraw his plea based on his mistaken belief about the guideline range he was facing. He claimed that it was only after he pled guilty that he learned his criminal history would be increased because he was an armed career criminal under § 4B1.4(a). The Eighth Circuit held that a defendant’s reliance on erroneous legal advice in deciding to enter a guilty plea does not provide a ground for withdrawing the plea. The case relied on by defendant, Hill v. Lockhart, 894 F.2d 1009 (8th Cir. 1990), says only that post-conviction relief was, in an appropriate case, available to a prisoner who had relied on erroneous legal advice in deciding to plead guilty. Defendant could seek post-conviction relief if he wished, but the district court did not err in denying defendant’s motion to withdraw his plea. U.S. v. D’Angelo, 172 F.3d 1046 (8th Cir. 1999).
8th Circuit says counsel was deficient in allowing government to breach plea agreement. (790) The original indictment charged defendant with conspiracy to possess between five and 15 kilograms of cocaine. The government, in exchange for defendant’s guilty plea, promised to amend the indictment to charge defendant with between 3.5 and five kilograms of cocaine. Despite this agreement, neither defense counsel nor the government objected to the PSR, which attributed five to 15 kilograms to defendant. At sentencing, defense counsel never mentioned that the government had entered into a plea bargain which limited defendant’s relevant conduct. Defendant brought a § 2255 petition, but did not raise this issue. The Eighth Circuit, sua sponte, ruled that counsel was deficient in allowing the government to breach the plea agreement. Defendant was sentenced to serve an additional 40-50 months because his attorney was not familiar with the guidelines and failed to challenge the government’s breach of its agreement. The appellate court had authority to review the issue for plain error. Defendant’s substantial rights were affected because his prison sentence was longer than it should have been. U.S. v. Granados, 168 F.3d 343 (8th Cir. 1999).
8th Circuit find no double jeopardy where indictment referred to wrong mandatory minimum. (790) Defendant was discovered in possession of 52,898 grams of crack. In his written plea agreement, he acknowledged that his offense was punishable by a mandatory minimum of at least 10 years. At the plea colloquy, the court repeatedly informed defendant that he faced a 10-year mandatory minimum. However, counsel then noticed that the indictment referred to 21 U.S.C. § 841(b)(1)(B), which carries a five-year mandatory minimum for possessing between five and 50 grams of crack, rather than § 841(b)(1)(A), which carries a ten-year mandatory minimum for possessing 50 grams or more of crack. Defendant argued that the court’s application of the ten-year mandatory minimum violated double jeopardy, claiming that when the court accepted his guilty plea to an indictment referring to § 841(b)(1)(B), jeopardy attached. The Eighth Circuit found no double jeopardy violation, since neither § 841(b)(1)(A) nor § 841(b)(1)(B) describes a substantive offense¾they are merely sentence enhancement statutes. The substantive offense to which jeopardy attached was conspiracy to distribute a controlled substance in violation of 21 U.S.C. § 841(a). Drug quantity is not an essential element of that offense. U.S. v. Holt, 149 F.3d 760 (8th Cir. 1998).
8th Circuit denies plea withdrawal where defendant was informed of potential life sentence. (790) Defendant pled guilty to drug and firearms charges. He later tried to withdraw his plea, but the district court denied the motion and sentenced him to life on the drug conviction and a consecutive 12 months on the firearm conviction. Defendant argued that the district court erred in denying his motion to withdraw his guilty plea because he did not understand that he faced a potential life sentence. The Eighth Circuit disagreed. Defendant told the court at sentencing that before entering his plea his counsel told him that his sentence could range from 20 years to life. The court also advised him of this range and maximum during the plea hearing. Defendant failed to demonstrate a just reason to permit withdrawal of his plea. U.S. v. Eads, 144 F.3d 1151 (8th Cir. 1998).
8th Circuit finds government violated plea agreement by refusing to make recommendation. (790) After defendant was convicted of the present armed bank robbery, he escaped but was caught. He then agreed to plead guilty to escape and¾in a separate case involving a post office robbery¾to a lesser charge of assault, and to testify against his co-conspirators in the post office robbery. The government agreed to recommend concurrent sentences and to make a § 5K1.1 recommendation for a downward departure of up to 50%. However, at sentencing, the AUSA said the government had no sentencing recommendation. The AUSA did move for a § 5K1.1 departure, but indicated that defendant had “earned his reward” for his assistance by being charged with assault rather than robbery in the post office robbery case. The AUSA also introduced victim-impact statements from the tellers in the present bank robbery. The district court denied the § 5K1.1 motion. The Eighth Circuit held that the government breached the plea agreement by referring to defendant’s “reward” in the post office robbery case and by using the victim-impact statements. Moreover, the government’s statement that it had no recommendation was a breach of its promise to recommend a downward departure of up to 50%. U.S. v. Mitchell, 136 F.3d 1192 (8th Cir. 1998).
8th Circuit finds counsel’s erroneous estimate of guideline range did not make plea involuntary. (790) Defendant argued that his plea was involuntary because his counsel estimated that defendant would be subject to a sentencing range of 121-151 months, rather than the 210 months he actually received. The Eighth Circuit held that defense counsel’s erroneous estimate of defendant’s guideline sentence did not render an otherwise voluntary plea involuntary. Defendant’s plea agreement specifically informed defendant that the district court would decide at the time of sentencing whether the managerial enhancement, which caused defendant’s sentencing range to be higher, applied. At his plea hearing, the court advised defendant that the guidelines would determine his sentence and that the statutory minimum was 10 years and the maximum sentence was life. Before sentencing, defendant filed a pro se motion to withdraw his guilty plea. At the sentencing hearing, the court asked defendant whether he wanted to be heard on the motion, and he said no and withdrew the motion. U.S. v. Bond, 135 F.3d 1247 (8th Cir. 1998).
8th Circuit holds judge’s comments did not make plea agreement’s loss calculation binding. (790) The district judge held defendants accountable for more loss that they and the government agreed to in their plea agreements. Defendants contended that the judge who accepted their guilty pleas led them to believe that the loss amount from the plea agreement would be adopted for sentencing purposes. The judge remarked that he “would see that the entire [plea] agreement [was] carried out faithfully” and that it would be “enforced.” The Eighth Circuit held that the judge’s comments did not make the plea agreement’s loss calculation binding. Defendants acknowledged that they had read and understood the plea agreement. The agreement provided that if the court imposed a sentence which defendants did not agree with, they would not be permitted to withdraw his plea. During the plea hearing, the government specifically drew attention to this provision. Thus, a reasonable person could not have construed, or relied on, the judge’s remarks as a promise that the loss calculation in the plea agreement would be adopted for sentencing purposes. It was not inequitable to uphold the judge’s decision to disregard the plea agreement’s loss calculation. Moreover, the district court’s decision not to adopt the plea agreement’s loss did not provide grounds for defendants to withdraw their guilty pleas. U.S. v. Cain, 134 F.3d 1345 (8th Cir. 1998).
8th Circuit upholds denial of permission to withdraw guilty plea. (790) Defendant pled guilty to a drug charge and received a 292-month sentence. He challenged the district court’s refusal to allow him to withdraw his guilty plea, claiming that counsel had advised him he would only receive a 15-year sentence, that he had spoken with counsel only five minutes before signing the plea agreement, and had not read the agreement in detail or understood it. The Eighth Circuit upheld the district court’s denial of permission for defendant to withdraw his guilty plea. At his plea hearing, defendant told the court he wanted to plead guilty and understood the range of imprisonment, agreed he was guilty of the charged offense, understood he did not have to plead guilty, acknowledged he had read and signed the plea agreement, and had understood it before signing it. The court informed defendant of the constitutional rights he was waiving and told him before accepting the plea that he could not withdraw it because of an asserted lack of understanding. U.S. v. Baxter, 128 F.3d 670 (8th Cir. 1997).
8th Circuit finds government did not reserve discretion to decide if cooperation merited § 5K1.1 motion. (790) Defendant challenged the government’s refusal to make a § 5K1.1 motion for a substantial assistance departure. Defendant’s cooperation agreement provided that in exchange for defendant “providing truthful information, complete cooperation, truthful testimony and assistance,” the government would file a § 5K1.1 motion. The stipulation of facts further provided that in exchange for defendant’s plea and fulfillment of the conditions of the cooperation agreement, the government agreed to file a downward departure motion. The Eighth Circuit held that this agreement did not unambiguously reserve the government’s customary discretion to decide whether defendant’s cooperation warranted a substantial assistance motion. The cooperation agreement conditioned the motion on defendant providing truthful information and testimony and “complete cooperation.” To defendants and defense attorneys, this may connote doing all one can do—an objective standard—whereas providing “substantial assistance” connotes doing enough to satisfy the prosecutor’s notion of what is substantial. The court remanded for further proceedings to determine what the parties meant by “truthful information, complete cooperation, truthful testimony and assistance,” and whether defendant met that condition as construed. U.S. v. Barresse, 115 F.3d 610 (8th Cir. 1997).
8th Circuit holds that guilty plea was voluntary. (790) In a § 2255 motion, defendant argued that his guilty plea was involuntary because counsel incorrectly advised that he would not serve a lengthy prison term if he pleaded guilty and need not worry about an error in the stipulation of facts that accompanied the plea. The Eighth Circuit held that the plea was voluntary. Defendant expressly acknowledged at his plea hearing that he could receive a sentence of up to 25 years in prison, that his sentence would not be determined until a presentence report had been prepared, that he was bound by his plea even if he received a longer sentence than expected, and that he agreed to the stipulation of facts. Premachandra v. U.S., 101 F.3d 68 (8th Cir. 1996).
8th Circuit holds government breached agreement from another district to recommend concurrent sentences. (790) Defendant pled guilty to LSD charges in a federal court in Iowa. He fled and moved to Wyoming. He was then arrested in Wyoming on federal drug charges. Pursuant to a written plea agreement, defendant pled guilty to marijuana charges in a district court in Wyoming. The Wyoming plea agreement provided that the “United States” would recommend that the Wyoming sentence be served concurrently with any sentence imposed for the Iowa offense. At sentencing in the Iowa district court, the government requested, and the district court imposed, a sentence that ran consecutively to the Wyoming sentence. Defendant claimed this breached the Wyoming plea agreement. The government argued that any promise made by an AUSA for the District of Wyoming in a plea agreement would not be binding on an AUSA in the Southern District of Iowa. The Eighth Circuit held that the government breached the plea agreement, since absent an express limitation, any promises made by an AUSA in one district will bind an AUSA in another district. Defendant was entitled to specific performance of the plea agreement. U.S. v. Van Thournout, 100 F.3d 590 (8th Cir. 1996).
8th Circuit holds that breach of plea agreement issue is cognizable on direct appeal. (790) Defendant argued that the government breached his plea agreement to recommend concurrent sentences. The government argued that the appellate court should not address this issue on direct appeal, contending that questions about enforcement of the plea agreement should first be raised in the district court by motion to withdraw the plea under Rule 32, by motion to reduce or correct the sentence under Rule 35, or by motion to vacate set aside or correct the sentence under § 2255. The Eighth Circuit held that the issue of breach of the plea agreement was cognizable on direct appeal. Since defendant had already been sentenced, he cannot now file a motion to withdraw the plea. After sentencing, the plea may be set aside only on direct appeal or by motion under § 2255. Moreover, defendant did not want to withdraw his plea, he wanted to enforce the plea agreement. Even though the district court did not decide whether the plea agreement had been breached, the issue of the breach of the plea agreement direct affected the lawfulness of defendant’s sentence, which was precisely what was under review in this appeal. U.S. v. Van Thournout, 100 F.3d 590 (8th Cir. 1996).
8th Circuit says failure to tell defendant he could not withdraw plea was harmless error. (790) Defendant argued that his guilty plea was defective because the district court failed to advise him as required by Rule 11(e)(2) that he could not withdraw his plea if the district court did not accept the government’s sentencing recommendation. The Eighth Circuit found this was harmless error under Rule 11(h). Even if defendant had been given the warning, he still would have pleaded guilty, because the warning would have added little to the knowledge he already possessed about the plea process. There was no evidence that defendant was confused about the possible sentences he could receive, or that he believed he would be able to withdraw his plea if the court did not follow the government’s recommendation. The plea agreement said the court had discretion to grant or deny the government’s downward departure motion, and that the parties’ sentencing position was not binding on the court. Defendant did not claim he misunderstood these provisions. He was highly educated and a prominent businessman who never moved to withdraw his plea U.S. v. McCarthy, 97 F.3d 1562 (8th Cir. 1996).
8th Circuit says failure to make § 5K1.1 motion did not breach plea agreement. (790) Defendant contended that the district court should have granted his motion to withdraw his guilty plea, since the government failed to file a promised § 5K1.1 motion. The Eighth Circuit found no violation of the plea agreement. The agreement said the government retained discretion to file a § 5K1.1 motion. It also stated that defendant understood that he would not be able to withdraw his plea if he was not satisfied with the government’s substantial assistance determination. Defendant stated at sentencing that the written plea agreement covered his entire understanding with the government. U.S. v. Knight, 96 F.3d 307 (8th Cir. 1996).
8th Circuit remands to decide prejudice from counsel’s erroneous sentencing advice. (790) Defendant contended that he pled guilty based on his counsel’s erroneous advice that if convicted after trial, his sentences would run consecutively. In fact, defendant could not have been sentenced consecutively unless the district court determined that an upward departure was required. Defense counsel admitted that he gave defendant erroneous advice. The Eighth Circuit remanded for the district court to determine whether defendant was prejudiced by his counsel’s errors. The court never asked defendant whether his counsel’s inaccurate advice caused him to plead guilty. The appellate court could not determine from the record whether the district court should have allowed defendant to withdraw his plea. If defendant would not have pled guilty but for his counsel’s erroneous advice, then defendant was entitled to withdraw his plea. U.S. v. McMullen, 86 F.3d 135 (8th Cir. 1996).
8th Circuit says court need not advise defendant of guideline range at plea hearing. (790) Defendant argued that the district court misled him about his sentence at his plea hearing in violation of Rule 11(c)(1). The Eighth Circuit held that the court satisfied Rule 11 by informing defendant that he faced a statutory maximum of ten years, that his sentence would be governed by the guidelines, and that it would not be known if defendant would receive a sentence less than ten years until after the PSR was prepared. The court was not obligated to inform defendant of the applicable guideline range or the actual sentence he would receive. U.S. v. Marks, 85 F.3d 396 (8th Cir. 1996).
8th Circuit says former counsel’s alleged promise as to sentence did not justify plea withdrawal. (790) Six months after pleading guilty, and two weeks before sentencing, defendant asserted that a conflict of interest had arisen between him and his counsel, and urged the district court to reject his plea agreement. After new counsel was appointed, defendant testified that his former counsel had arranged for him to receive a 78‑month sentence in return for his guilty plea. Defendant’s mother corroborated this testimony. Counsel denied making such a promise. The Eighth Circuit held that former counsel’s alleged promise did not present a “fair and just” reason for allowing defendant to withdraw the plea. Even if counsel told him he would receive a 78‑month sentence, and defendant relied on that representation, this would be insufficient for plea withdrawal. The absence of such terms in the plea agreement and stipulation, defendant’s admission at the change of plea hearing, and the district court’s statements to defendant at the hearing demonstrated that defendant was aware of the possible punishment he faced and that the guidelines would apply. U.S. v. Peebles, 80 F.3d 278 (8th Cir. 1996).
8th Circuit says carrying gun in car is not an “otherwise unlawful use” of firearm. (790) Defendant, an illegal alien, was arrested driving his car with a loaded rifle. He was convicted of illegally possessing a firearm. Section 2K2.1(b) (2) provides for a reduction if the defendant possessed the gun solely for lawful sporting purposes or collection, and did not “unlawfully use” the gun. In the plea agreement, the government agreed to remain silent about this reduction. However, at sentencing, the government told the court the reduction did not apply because defendant illegally carried the gun in his car. The Eighth Circuit held the government’s breach of the agreement was not harmless because the court could have granted the reduction. Transporting a firearm in violation of auto safety laws is not an “otherwise unlawful use” of a firearm under § 2K2.1(b)(2). An “otherwise unlawful use” must be similar to an “unlawful discharge,” such as using a gun to threaten or to beat another person. U.S. v. Mendoza‑Alvarez, 79 F.3d 96 (8th Cir. 1996).
8th Circuit says agreement to take “no position” on departure did not preclude cross-examination of defense expert. (790) The government agreed in a plea bargain “to take no position” on a motion for a downward departure based on aberrant behavior. The Eighth Circuit held that this did not bar the cross examination of a defense psychologist who testified at the sentencing hearing, since the cross examination was to clarify the agreed facts. The court has authority to permit reasonable cross-examination to present true facts if distortion of the facts otherwise would occur. Here, the witness began to shift the focus of the grounds for departure from the agreed fact that marital infidelity had precipitated the offense, to a larger collection of grievances based on spousal abuse. Morris v. U.S., 73 F.3d 216 (8th Cir. 1996).
8th Circuit says denial of § 3E1.1 reduction did not breach plea agreement. (790) Defendant pled guilty to sexual abuse of a minor. In the plea agreement, the government agreed to recommend a § 3E1.1 reduction, unless there was “significant evidence disclosed in the presentence investigation to the contrary.” The PSR disclosed that defendant told his probation office that he never touched the victim, and that he only agreed to plead guilty because his brother and sister would have testified against him. The Eighth Circuit affirmed the denial of the § 3E1.1 reduction, finding defendant was not entitled to specific performance of the plea agreement. The government was not required to recommend the reduction because of the contrary information revealed in the PSR. U.S. v. Janis, 71 F.3d 308 (8th Cir. 1995).
8th Circuit says government’s failure to move for departure below mandatory minimum not grounds for plea withdrawal. (790) The government moved for a § 5K1.1 departure from the guidelines, but did not move under 18 U.S.C. § 3553(e) for a departure below the mandatory minimum. Defendant argued that the district court abused its discretion in refusing to hold an evidentiary hearing before denying his motion to withdraw his guilty plea. The Eighth Circuit disagreed, since defendant failed to state a legally sufficient basis for withdrawing his plea. His plea agreement specifically stated that the government had sole discretion to make or withhold a downward departure motion, and that the government’s failure to make either a § 5K1.1 motion or a § 3553(e) motion did not present grounds for defendant to withdraw his plea. Moreover, defendant had a full opportunity to present evidence regarding his alleged good faith cooperation and the government’s alleged bad faith. U.S. v. Wojcik, 60 F.3d 431 (8th Cir. 1995).
8th Circuit holds that defendant waived objection to government’s failure to recommend sentence at low end of range. (790) At defendant’s plea hearing, the prosecutor stated that it agreed to make a nonbinding recommendation at sentencing that defendant be sentenced at the low end of the guideline range. Towards the end of the sentencing hearing, this prosecutor was excused and her place taken by a colleague. The new prosecutor told the court that it had no specific recommendation as to sentence, but had no objection to a sentence at the bottom of the guideline range. Defense counsel did not object to this statement. The Eighth Circuit held that defendant waived any objection to the government’s failure to make the promised recommendation. Defendant did not raise an immediate objection to the prosecutor’s statement, ask for a continuance to recall the original prosecutor who make the promise, restate the terms of the agreement, or move to withdraw his plea. It would be unfair to allow defendant to sit idly by at sentencing, and now seek a remand to clarify the matter. U.S. v. Cohen, 60 F.3d 460 (8th Cir. 1995).
8th Circuit says multiple victim argument did not breach promise not to recommend more than minimal planning enhancement. (790) Defendant’s plea agreement obligated the government not to take any position with regard to a more than minimal planning enhancement under § 2F1.1(b)(2). Defendant argued that the government breached this promise by arguing to the probation officer that his offense involved more than one victim. The Eighth Circuit disagreed, since the plea bargain referred to a more than minimal planning enhancement under subsection (A), not a more than one victim enhancement under subsection (B). The government’s comments only referred to the multiple victim aspect of § 2F1.1(b)(2). U.S. v. Cohen, 60 F.3d 460 (8th Cir. 1995).
8th Circuit rules that restitution that equaled co-conspirator’s restitution plus fine was not plain error. (790) Defendant’s plea agreement provided that defendant’s sentence would not be greater than the sentence imposed on his co-conspirator. The co-conspirator was sentenced to 33 months’ incarceration, fined $25,000, and ordered to pay $25,000 restitution. Defendant argued for the first time on appeal that his $50,000 restitution exceeded the maximum amount permitted under his plea agreement. The Eighth Circuit found no plain error. Defendant received a prison sentence three months shorter than his co-conspirator and, although he was ordered to pay twice as much restitution as his co-conspirator, the district court did not fine defendant. The co-conspirator’s fine plus restitution equaled the amount of defendant’s restitution. U.S. v. Kessler, 48 F.3d 1064 (8th Cir. 1995).
8th Circuit rules that defendant received adequate notice of statutory minimum and maximum. (790) Defendant contended that his guilty plea should be vacated because the court did not adequately notify him of his possible sentences. The 8th Circuit ruled that defendant received adequate notice of the maximum and minimum sentences that he could receive. The trial court’s statement that defendant faced a term of 20 years to life on one count adequately informed defendant of the 20-year mandatory minimum, and the maximum life sentence. The court’s statement that on another count defendant could be imprisoned for not more than five years and fined up to $250,000 informed defendant of the maximum sentence he could receive. This count did not carry a mandatory minimum. U.S. v. Marks, 38 F.3d 1009 (8th Cir. 1994).
8th Circuit says failure to make substantial assistance motion did not breach plea agreement. (790) Defendant claimed that the government breached his plea agreement by failing to move for a substantial assistance departure. He argued that he cooperated to the best of his ability, and the motion should not be withheld simply because the government decided he had not substantially assisted in any other prosecution. The 8th Circuit rejected defendant’s claim, finding no distinction between “cooperation” as used in the agreement and “substantial assistance” as used in § 5K1.1. The agreement requires cooperation that amounts to substantial assistance. The government retained the sole discretion to determine whether to file the motion. Defendant did not allege that the government had an unconstitutional motive or that the government acted in bad faith. U.S. v. Kelly, 18 F.3d 612 (8th Cir. 1994).
8th Circuit says mere filing of forfeiture complaint did not violate plea agreement. (790) In 1986 defendant pled guilty to drug charges. His plea agreement provided that the government would not forfeit defendant’s residence. In 1991, defendant was arrested on new drug charges. In 1992, the government filed a forfeiture complaint against defendant’s residence, pointing to both the 1986 seizure of cocaine and money from defendant’s home, and the 1991 seizure of drugs and money from his home. Defendant claimed that this breached the plea agreement. The 8th Circuit held that the mere filing of the forfeiture complaint did not violate the plea agreement. The court agreed with defendant that the government could not use his 1986 conduct as a basis for forfeiture of the house. However, at this stage of the forfeiture proceedings, defendant could not show that probable cause depended on the 1986 conduct. The reference in the complaint to the 1986 conduct was merely background information. U.S. v. Deaton, 13 F.3d 270 (8th Cir. 1993).
8th Circuit rejects reliance on oral plea agreement where court had not approved it. (790) The government orally agreed that it would move for a reduced sentence in exchange for defendant’s cooperation. It later informed defendant it would not go through with the agreement and filed a notice of enhancement based on defendant’s prior felony conviction. The 8th Circuit held that defendant was not entitled to relief due to the government’s withdrawal from the agreement. Defendant was not justified in relying on the agreement because it had not been approved and accepted by the district court. He made no showing that the government gained an unfair advantage over him in withdrawing its consent to the agreement. U.S. v. Wessels, 12 F.3d 746 (8th Cir. 1993).
8th Circuit rejects appeal where defendant’s sentence was much lower than guidelines. (790) Defendant had a guideline range of 210 to 262 months. His plea agreement provided that he could move, without government opposition, for a downward departure under section 4A1.3 to a sentence of not less than 121 months. He did so, and received a 121-month sentence. The 8th Circuit rejected his appeal. Defendant conceded in his plea agreement that he was subject to a sentencing range of 210 to 262 months, and he ultimately received a much lower sentence. Under the circumstances, he had no basis for an appeal. U.S. v. Patterson, 11 F.3d 824 (8th Cir. 1993).
8th Circuit rules defendant waived claim that government breached plea agreement. (790) Defendant argued that the government breached its promise in his plea agreement not to make a motion for an upward departure by asking the district court to impose a “substantial sentence.” The 8th Circuit held that defendant failed to preserve this alleged error for review. No objection was made in the district court that the prosecutor’s remarks violated the plea agreement. Judge Heaney dissented. U.S. v. Beatty, 9 F.3d 686 (8th Cir. 1993).
8th Circuit concludes that plea agreement barring future proceedings against defendants did not bar forfeiture. (790) Defendants’ plea agreement provided that the government would not initiate future proceedings against the defendants for any crimes which were within the scope of the investigation and indictment in their drug case. The 8th Circuit held that a forfeiture proceeding is not a proceeding against a defendant, but against property, and therefore the instant forfeiture proceeding was not barred by the plea agreement. Judge Beam dissented, believing that the government’s actions indicated that it also believed that forfeiture actions were barred by the plea agreement. U.S. v. One Parcel of Real Property, 999 F.2d 1264 (8th Cir. 1993).
8th Circuit says government had discretion to determine extent of sentence recommendation. (790) The 8th Circuit rejected defendant’s claim that the government breached the plea agreement by not recommending a greater sentence reduction in its Rule 35(b) motion. The agreement gave the government sole discretion to determine whether defendant had provided substantial assistance, and clearly stated that the recommendation for reduction to level 16 was contingent on the prosecutor’s determination that defendant provided such assistance. White v. U.S., 998 F.2d 572 (8th Cir. 1993).
8th Circuit holds that defendant failed to prove police promised lenient sentence. (790) Defendant argued that the district court erred in failing to sentence him in accordance with an alleged promise made to him by police in exchange for his cooperation. The 8th Circuit ruled that defendant failed to prove that the police made any promise to him, thus there was no need to examine the nature or enforceability of the promise. The district court heard extensive evidence and determined that defendant’s claim was not believable. U.S. v. Barahona, 990 F.2d 412 (8th Cir. 1993).
8th Circuit upholds sentence after plea that was the same as if defendant had gone to trial. (790) Defendant argued that his due process rights were violated because after pleading guilty pursuant to a plea agreement, he received the same sentence that he would have received had he been convicted after a trial. The 8th Circuit rejected this “novel argument.” The plea agreement contained no promises of a downward departure, and defendant admitted that the government made no promises outside the agreement. The agreement made it clear that defendant’s ultimate sentence would depend on the district court’s factual findings as to the amount of cocaine involved in the conspiracy. Defendant, in entering the plea agreement, was simply gambling that the quantity of cocaine would be small enough to require a shorter sentence under the guidelines. He lost the gamble. U.S. v. Villegas, 987 F.2d 1362 (8th Cir. 1993).
8th Circuit refuses to permit plea withdrawal despite principal witness’s unexpected refusal to testify. (790) The 8th Circuit affirmed the district court’s denial of defendant’s motion to withdraw his guilty plea. Defendant could not have misunderstood that he was only being charged with a conspiracy between himself and a government agent (which would not be an crime). The second indictment clearly listed several alleged co-conspirators. The fact that a principal witness unexpectedly refused to testify against defendant at sentencing did not entitle defendant to withdraw his plea. A co-defendant testified at the hearing and offered considerable evidence of defendant’s guilt. Presumably she would have done so at trial as well. U.S. v. Nichols, 986 F.2d 1199 (8th Cir. 1993).
8th Circuit rejects mistaken judgment as to strength of government’s case as grounds for plea withdrawal. (790) During sentencing, a case synopsis was presented in which an undercover agent stated that there appeared to be no way to consummate the reverse sting operation involving defendant and therefore the case would be considered closed. Defendant moved to withdraw his guilty plea on the ground that his plea was induced by his first lawyer’s representations that the government’s case against him was strong. He argued that if he had known the agent had closed the investigative file even before the indictment was issued, he would not have pled guilty. The 8th Circuit found that defendant’s reliance on his attorney’s mistaken judgment was not grounds to withdraw his plea. The document did not reveal a defense previously unknown to defendant but at most, a source of impeachment material that could be used against the undercover agent at trial. U.S. v. Nichols, 986 F.2d 1199 (8th Cir. 1993).
8th Circuit rules defendant waived claim that plea agreement was void. (790) Defendant argued that his breach of the cooperation clause in his plea agreement rendered the agreement void by its own term, and provided grounds for the withdrawal of his guilty plea. The 8th Circuit held that defendant waived this argument by failing to present it at the continuation of his plea hearing. Rather than assert that the plea agreement was void, defendant urged the court to approve the agreement, reaffirmed his guilty plea, and accepted the benefit of his bargain. Moreover, even if the issue were not waived, it was doubtful that defendant, as the breaching party, could invoke the void provision of the plea agreement. U.S. v. Cox, 985 F.2d 427 (8th Cir. 1993).
8th Circuit says court did not reject plea agreement by relying on undisclosed criminal history. (790) Defendant’s plea agreement contemplated an offense level of 31, but made it clear that the final determination was up to the district court. The agreement explained that defendant would be subject to a statutory maximum sentence of 35 years in prison, and that if the court did not agree to the terms of the plea agreement, his plea could be withdrawn. After determining that defendant was a career offender, the district court assigned an offense level of 32, and his 262-month sentence was at the top of his guideline range. The 8th Circuit ruled that this was not a rejection of the plea agreement. The plea agreement calculated what the parties anticipated his sentence would be at the time the agreement was executed. Defendant failed to disclose an earlier conviction, which led to an underestimation of his guideline range. The agreement’s recitation of a probable range did not amount to a recommendation, especially in the light of the admonition that the final sentencing decision belonged to the court. U.S. v. Hager, 985 F.2d 945 (8th Cir. 1993).
8th Circuit refuses to permit withdrawal of plea for alleged misrepresentation of guideline range. (790) The 8th Circuit affirmed the denial of defendant’s motion to withdraw his guilty plea, rejecting defendant’s claim that the government misled him as to his appropriate guideline range. The letter from the prosecutor estimated defendant’s range at 63 to 78 months and stated that the calculation was “preliminary” and “brief.” The plea agreement stated that any recommendation by the government was not binding on the court and defendant could not withdraw his plea if the court rejected any recommendation. Before accepting defendant’s plea, the court conducted an extensive colloquy to make certain he understood that his sentence could not be determined until after the presentence report was determined. The judge also made it clear that if his guideline range was higher than expected defendant would not be able to withdraw his plea. U.S. v. Mahler, 984 F.2d 899 (8th Cir. 1993).
8th Circuit affirms denial of motion to withdraw guilty plea despite excessive sentence. (790) The 8th Circuit affirmed the denial of defendant’s motion to withdraw his guilty plea. Defendant’s claims of ineffective assistance and ignorance of his options were contradicted by his written plea agreement and the record from the Rule 11 hearing. Although his 235-month sentence for being a $1,000 drug “mule” seemed excessive, it was required by law. Senior Judge Heaney dissented, believing the district judge should have considered whether defendant was a minimal participant. U.S. v. Johnson, 977 F.2d 457 (8th Cir. 1992).
8th Circuit rules that government’s recommendation of upward departure violated plea agreement. (790) Defendant’s plea agreement provided that the government would not seek an upward departure from the offense level calculated “by the United States Probation Office.” The presentence report included a 10-level enhancement, which resulted in a total offense level of 18. The district court sustained defendant’s objection to the 10-level enhancement, but instead imposed a four-level enhancement, resulting in a total offense level of 12. The government then urged an upward departure, arguing that this did not violate the plea agreement since the court used a range significantly lower than the presentence report. The 8th Circuit found that the government’s recommendation violated the plea agreement. “It is circuitous to suggest that because one of the recommendations in the PSR was rejected by the district court, the ultimate offense level was calculated in any way other than ‘by the United States Probation Office.’“ Judge Gibson dissented. U.S. v. Van Horn, 976 F.2d 1180 (8th Cir. 1992).
8th Circuit says misunderstanding career offender status did not entitle defendant to withdraw plea. (790) After defendant signed his plea agreement, an Assistant U.S. Attorney faxed to defendant’s counsel her calculations of defendant’s likely sentence under the guidelines. It showed a range of 120-150 months for criminal history category V and a range of 130-162 months for category VI. Defendant’s counsel had independently calculated the likely sentencing range and reached similar results. Nevertheless, the presentence report classified defendant as a career offender, with a range of 210 to 262 months. Defendant moved to withdraw his plea, arguing that the government’s representation induced him to plead guilty. The 8th Circuit affirmed the district court’s denial of defendant’s motion. The written plea agreement was specific in its terms and promised no certain sentencing range. Even if defendant misunderstood the application of the guidelines, this would not entitle him to withdraw his plea, as he was apprised of the possible range of punishment and told that the guidelines would apply. U.S. v. Ludwig, 972 F.2d 948 (8th Cir. 1992).
8th Circuit finds no abuse of discretion in refusing defendant’s request to withdraw his guilty plea. (790) The 8th Circuit upheld the district court’s refusal to permit defendant to withdraw his guilty plea. Defendant did not present a fair and just ground for granting his motion for withdrawal. Contrary to his allegations, defendant was informed of his right to confront witnesses and was given an opportunity by the government to examine its case file. There was also no merit to defendant’s claim that his guilty plea was involuntary because his counsel pressured him to plead guilty, thus denying him effective assistance of counsel. On two separate occasions at his plea hearing defendant stated that he was satisfied with his counsel and never indicated that he was under pressure to plead guilty. U.S. v. Abdullah, 947 F.2d 306 (8th Cir. 1991).
8th Circuit holds that Rule 11 does not require defendant to be advised that offense level would be determined by aggregating cocaine sold by co-conspirators. (790) Defendant argued that the district court failed to inform him of the direct consequences of his guilty plea as required by Rule 11. He contended that the court was required to disclose that his offense level would be determined by combining the cocaine he distributed with the cocaine distributed by his co-conspirators. The 8th Circuit found no Rule 11 violation, since failure to disclose the various factors that might influence the defendant’s offense level for sentencing purposes does not violate Rule 11. U.S. v. Abdullah, 947 F.2d 306 (8th Cir. 1991).
8th Circuit finds no breach of plea agreement in government’s failure to move for downward departure. (790) The government gave defendant an unsigned plea agreement stating that he was cooperating, and that he could present these efforts to the court at sentencing. The government later informed defendant that it would not move for a downward departure. Defendant’s attempt to plead guilty based on the unsigned agreement was rejected by the district court. Several months later defendant signed a plea agreement identical to the first except that it did not require the government to make a § 5K1.1 motion. On appeal, defendant contended that the first agreement induced him to cooperate, and should have been specifically enforced. The 8th Circuit rejected this contention, even assuming the first agreement was binding. When defendant pled guilty under the second plea agreement, he was aware that the government was not going to make the § 5K1.1 motion. Hence, his plea was not involuntary or induced by any misrepresentation. Moreover, the first plea agreement did not induce defendant to cooperate, since defendant began cooperating shortly after his arrest. U.S. v. Hubers, 938 F.2d 827 (8th Cir. 1991).
8th Circuit finds no error in district court’s failure to follow government’s recommended sentence. (790) Defendant contended that the 46-month sentence he received violated his plea agreement and that the district court improperly exceeded the government’s recommended 27-month sentence. The 8th Circuit found no merit to these contentions. The plea agreement specifically stated that the court could sentence defendant anywhere within the statutory maximum. The court also told defendant at the plea hearing that it was not bound by the government’s recommendation or the stipulated base offense level. U.S. v. Hibbert, 929 F.2d 434 (8th Cir. 1991).
8th Circuit rejects claim of inadequate legal counsel prior to signing plea agreement. (790) Defendant contended that he received inadequate legal advice prior to signing the plea agreement because he was not informed of the possible sentence he could receive at the time of plea signing. The 8th Circuit found the mere fact that defendant did not have counsel when he entered into the agreement was not a basis for error. There also was no support for defendant’s argument that his base offense level should have been calculated using only the information the government had before the plea agreement. U.S. v. Pregler, 925 F.2d 268 (8th Cir. 1991).
8th Circuit determines sentencing defendant as career offender does not violate plea agreement. (790) Defendant’s plea agreement required the government to withdraw its notice pursuant to 21 U.S.C. § 851 of its intent to prosecute defendant as a repeat offender. Defendant contended that the district court’s consideration of his prior drug convictions to sentence him as a career offender violated § 851 and his plea agreement. The 8th Circuit rejected these arguments. Section 851’s notice procedures do not conflict with the career offender provisions because § 851 is limited to situations in which a defendant’s statutory minimum or maximum penalty is enhanced. The career offender guidelines merely increase defendant’s sentence within a statutory range. There also was no violation of the plea agreement, since it clearly stated that the determination of the applicability of the career offender guidelines was left to the discretion of the court. U.S. v. Auman, 920 F.2d 495 (8th Cir. 1990).
8th Circuit affirms adjustment for obstruction and denial of reduction for acceptance of responsibility. (790) Defendant appealed the district court’s decision to deny him a two-level reduction for acceptance of responsibility and to assess him a two-level penalty for obstruction of justice. The 8th Circuit affirmed, finding that defendant lied on several occasions concerning the extent of his past drug dealings. This was not only a breach of his plea agreement, thus disqualifying him for an acceptance of responsibility reduction, but was also grounds for an obstruction of justice enhancement. Defendant was not punished for failing to confess the full extent of his drug involvement. That would violate the 5th Amendment. Rather, he was punished for lying, after he had voluntarily agreed in his plea agreement to reveal all of his past drug dealings. U.S. v. Lawrence, 918 F.2d 68 (8th Cir. 1990).
8th Circuit remands to determine whether government already possessed information defendant revealed to probation officer. (790) Defendant contended that the government violated his plea agreement by using incriminating information which he gave to the probation officer in his presentencing interview. The 8th Circuit rejected the government’s argument that guideline § 1B1.8(a)’s prohibition against the use of certain self-incriminating information does not apply to self-incriminating information admitted to a probation officer. However, the government also argued that defendant’s admissions merely corroborated more general information it had already obtained from independent sources. Since the record was silent regarding what information the government already knew before the sentencing hearing, the 8th Circuit remanded the case to the district court to hear evidence on the issue. U.S. v. Frondle, 918 F.2d 62 (8th Cir. 1990).
8th Circuit upholds plea despite defendant’s belief that sentence would be based only on cocaine in offense of conviction. (790) Defendant pled guilty to distributing 4.4 pounds of cocaine, and was sentenced on the basis of all the cocaine distributed by the conspiracy, placing him in the range of 5 to 14.9 kilograms. Defendant claimed that he misunderstood how the guidelines would be applied, and moved to withdraw his guilty plea. The 8th Circuit affirmed the denial of the motion. Defendant had been advised of the range of possible punishment and was told that the guidelines applied. The 8th Circuit also found that it was proper to base defendant’s sentence on the total amount of cocaine that defendant distributed, not just the amount listed in the charged offense. U.S. v. Hoelscher, 914 F.2d 1527 (8th Cir. 1990).
8th Circuit holds that defendant was not penalized for attempting to withdraw his guilty plea. (790) At the time of sentencing, the defendant attempted to withdraw his guilty plea and repeatedly asserted that he did not use a gun during the robbery. The district court refused to allow him to withdraw his plea, and refused to grant him a two level reduction for acceptance of responsibility. On appeal, the defendant argued that the district court unfairly denied him credit for acceptance of responsibility because he attempted to withdraw his guilty plea. The majority rejected the argument, holding that his “repeated refusals to acknowledge that he used a gun during the course of his crimes demonstrated his refusal to personally accept responsibility.” Judge Bright expressed concern that the defendant had been punished for attempting to exercise his constitutional right to trial by withdrawing his guilty plea. However, since that issue had not been directly raised, he concurred in the result. U.S. v. Carroll, 908 F.2d 340 (8th Cir. 1990).
8th Circuit upholds refusal to permit defendant to withdraw his guilty plea despite seven-fold upward departure. (790) Defendant argued that he should have been able to withdraw his guilty plea because he was misled by the court as to the effect of the dismissal of count two on his sentence. The trial court had stated that it was better for the defendant to have two counts rather than three facing him and that was probably why he decided to enter a plea of guilty. The 8th Circuit affirmed, finding that the trial judge’s remarks were not such that they misled the defendant as to the effect of the dismissal of count two on the guideline sentence. He did not indicate that the dismissal of count two would reduce the sentence. As to defendant’s contention that he was not advised that the court would make a seven-fold departure from the guideline range at the time of the guilty plea, the 8th Circuit found that the trial court had carefully explained to the defendant that the guideline range could not be determined until the presentence report had been considered. Therefore there was no merit to his contention that he pled guilty in ignorance of the possibility of an upward departure. U.S. v. Jones, 908 F.2d 365 (8th Cir. 1990).
8th Circuit affirms district court’s explanation of sentencing procedure at time of plea. (790) Defendant argued that the district court falsely advised him that his state drug conviction would not be used for enhancement purposes and therefore his guilty plea was involuntary. The 8th Circuit affirmed the district court’s action. Rule 11(c)(1) requires only that the defendant be informed of the statutory maximum penalty for his offenses, not the applicable guideline range or the actual sentence he will receive. The district court properly told defendant that the prior conviction would not statutorily enhance his sentence but would have an impact because it would count in scoring the criminal history. U.S. v. Thomas, 894 F.2d 996 (8th Cir. 1990).
9th Circuit finds district judge’s participation in plea negotiations requires remand to new judge. (790) The Ninth Circuit held that the district court violated Federal Rule of Criminal Procedure 11(c)(1) by intruding on plea negotiations by telling the defendant that he would accept a plea agreement only if the defendant received a life sentence. The court then held that the case should be remanded for sentencing to a new district judge, explaining that the district judge had already expressed his view of an appropriate sentence and explained that it would only accept a plea agreement that embodied that sentence. U.S. v. Kyle, 734 F.3d 956 (9th Cir. 2013).
9th Circuit finds no breach of plea agreement in prosecutor’s highlighting aspects of offense. (790) A plea agreement provided that the government would recommend a sentence at the low end of the guideline range, that the defendant could argue for a variance downward from the guideline range, and that the government could oppose a variance. At sentencing, the prosecutor told the court three times that it should impose a sentence at the low end of the guideline range but also opposed defense counsel’s arguments in favor of a lower sentence. In arguing, the prosecutor noted that defendant committed the fraud offense because of greed and that defendant was a danger to society. The Ninth Circuit held that the government had not breached the plea agreement by highlighting aspects of the offense. U.S. v. Moschella, 727 F.3d 888 (9th Cir. 2013).
9th Circuit finds alleged breach of plea agreement did not affect substantial rights. (790) Defendant and the government entered into a plea agreement in which the government agreed not to “seek, argue, or suggest in any way” any deviation from the parties’ sentencing guidelines calculation or stipulated sentence. In its sentencing memorandum, the government noted that defendant had 14 prior convictions for selling drugs and showed no sign that he would quit violating the law. The district court rejected the parties’ plea agreement and imposed a sentence higher than the sentence to which the parties agree. Reviewing for plain error, the Ninth Circuit declined to decide whether the government had violated the plea agreement, and instead held that any violation did not affect defendant’s substantial rights because the information in the government’s sentencing memorandum was also in the presentence report. U.S. v. Gonzalez-Aguilar, 718 F.3d 1185 (9th Cir. 2013).
9th Circuit says government breached plea agreement by failing to recommend agreed guidelines calculation. (790) Defendant pleaded guilty to drug-trafficking charges pursuant to a plea agreement that stated that the parties would recommend an offense level of 34 and the government would recommend a three-level reduction for acceptance of responsibility. Neither party took into account the guidelines’ grouping rules. Applying those rules, the presentence report recommended an offense level of 38 and no reduction for acceptance. At sentencing, the government recommended an offense level of 38 and argued that defendant should be sentenced within the range yielded by that offense level. The Ninth Circuit held that the government’s and the defendant’s mutual mistake of law did not excuse the government’s failure to abide by the terms of the plea agreement. The court also found that the government breached the agreement by failing to recommend a reduction for acceptance of responsibility. U.S. v. Manzo, 675 F.3d 1204 (9th Cir. 2012).
9th Circuit says government breached plea agreement by failing to recommend agreed guidelines calculation. (790) Defendant pleaded guilty to drug-trafficking charges pursuant to a plea agreement that stated that the parties would recommend an offense level of 34 and the government would recommend a three-level reduction for acceptance of responsibility. Neither party took into account the guidelines’ grouping rules. Applying those rules, the presentence report recommended an offense level of 38 and no reduction for acceptance. At sentencing, the government recommended an offense level of 38 and argued that defendant should be sentenced within the range yielded by that offense level. The Ninth Circuit held that the government’s and the defendant’s mutual mistake of law did not excuse the government’s failure to abide by the terms of the plea agreement. The court also found that the government breached the agreement by failing to recommend a reduction for acceptance of responsibility. U.S. v. Manzo, 675 F.3d 1204 (9th Cir. 2012).
9th Circuit says giving court information from debriefing session violated plea agreement. (790) Defendant pleaded guilty to conspiracy to defraud the government, in violation of 18 U.S.C. § 286, pursuant to a plea agreement that stated, among other provisions, that the government would not use information divulged by defendant during his cooperation with the government. The agreement also allowed defendant to argue for a two-level reduction in offense level based on his role in the offense, and it allowed the government to argue for a two-level increase based his on role. At sentencing, defendant argued that he was not a leader or organizer of the offense. Although the prosecutor acknowledged that the plea agreement stated that the government could not use information obtained in proffer sessions, she responded that defendant had provided information during debriefing sessions “that put himself in a supervisory role.” The district court imposed the two-level enhancement, as well as a sentence above the guidelines range. The Ninth Circuit reversed, holding that the prosecutor had breached the plea agreement by giving the district court information that the government had obtained during debriefing sessions. U.S. v. Whitney, 673 F.3d 965 (9th Cir. 2012).
9th Circuit finds government breached plea agreement despite withdrawal of erroneous recommendation. (790) The government and the defendant entered into a plea agreement stating that defendant had an offense level of 12 and that the government would recommend a sentence within the guidelines range for that offense level and defendant’s criminal history category. The presentence report calculated defendant’s offense at 20. The government then filed a sentencing memorandum repeating the PSR’s calculations and recommending a sentence at the high end of the range yielded by offense level 20. When the defendant objected that the government had violated the plea agreement, the government retracted its recommendation and recommended a sentence within the guidelines range for offense level 12. The district court found that the government had not breached the plea agreement, but imposed a sentence above the range for offense level 12. The Ninth Circuit held that the government breached the plea agreement and remanded for resentencing before a different district judge. U.S. v. Alcala-Sanchez, 666 F.3d 571 (9th Cir. 2012).
9th Circuit acknowledges inconsistency in standard of review for breach of plea agreement. (790) In reviewing a claim that the government breached a plea agreement, the Ninth Circuit noted that it has “not been entirely consistent” in setting forth the standard of review for a claim that the government breached a plea agreement. The court noted that it had used both a de novo and a clearly erroneous standard. Because the court found the district court to be clearly erroneous, it held that it was unnecessary to resolve the inconsistency. U.S. v. Alcala-Sanchez, 666 F.3d 571 (9th Cir. 2012).
9th Circuit finds no breach of plea agreement in argument for above-guidelines sentence. (790) Defendant pleaded guilty to bank robbery pursuant to a plea agreement in which he and the government agreed that his Guidelines range was 97-121 months. The plea agreement stated that the government would not argue for any specific offense characteristic or adjustment to which the parties had not agreed but preserved the government’s right to argue for a sentence of up to 151 months. In its sentencing memorandum, the government argued that defendant’s reckless endangerment of others during a high-speed chase that followed the last of the bank robberies had not been factored into defendant’s Guidelines calculation and supported a higher sentence. The district court imposed a 151-month sentence. On appeal, defendant claimed that the government breached the plea agreement by arguing for an enhancement under § 3C1.2, which requires a two-point offense level increase if the defendant’s flight recklessly endangered others. The Ninth Circuit held that although the government’s arguments to the district court were “clumsy,” it had not exceeded its right to argue for a 151-month sentence. U.S. v. Ellis, 641 F.3d 411 (9th Cir. 2011).
9th Circuit says Rule 11 does not apply to admission of prior conviction triggering sentence enhancement. (790) Under 21 U.S.C. §851, a defendant charged with certain drug-trafficking crimes is subject to an enhanced mandatory minimum sentence if the defendant has a qualifying prior felony drug conviction and the government files an information alleging that prior conviction. Prior to defendant’s trial on drug-trafficking crimes, the government filed an information under §851 alleging that defendant had a prior felony conviction. After trial, defendant admitted the allegations of the §851 information. On appeal, defendant argued that a court may not accept an admission to the allegations in a §851 information unless it conducts the colloquy required by Federal Rule of Criminal Procedure 11 for acceptance of a guilty plea. The Ninth Circuit held that Rule 11 does not apply to a defendant’s admission of a prior felony under §851. Instead, a court must follow the procedures set forth in §851. U.S. v. Reed, 575 F.3d 900 (9th Cir. 2009).
9th Circuit finds no plain error in government’s failure to recommend sentence at hearing. (790) Defendant pleaded guilty pursuant to a plea agreement that stated that the government would recommend a sentence of 108 months “at the time of sentencing.” In the presentence report, the Probation Office calculated defendant’s Guideline range as 121-151 months. The government’s sentencing memorandum recommended a sentence of 108 months. At sentencing, after allowing defendant and his counsel to speak, the district court imposed a sentence of 121 months without allowing the government to address the court. After the court imposed sentence, the prosecutor reminded the court that the government had recommended a 108-month sentence, but the court did not alter the sentence. The Ninth Circuit held that because the phrase “at the time of sentencing” is ambiguous, the government’s failure to recommend a 108-month sentence at the sentencing hearing before the court imposed sentence was not plain error. U.S. v. Waknine, 543 F.3d 546 (9th Cir. 2008).
9th Circuit finds no breach even though government agreed with facts supporting increase that was barred by plea agreement. (790) Defendant agreed to plead guilty to possession of child pornography, and the parties stipulated to the number of images. The PSR noted that the stipulation substantially undercounted the number of images because of a misapplication of the Guidelines applicable to video clips. So the PSR recommended an enhancement for more than 600 images. The government agreed that the parties had miscounted the number of images, but informed the court that it was standing by the calculation in the plea agreement in order to avoid breaching the agreement. The government argued, however, that the court should rely on the number of images to impose a sentence at the high end of the Guideline range to which the parties agreed. The Ninth Circuit held that the government did not breach the plea agreement by urging the court to rely on the facts supporting the PSR’s distribution enhancement to impose a sentence at the high end of the Guideline range. U.S. v. Cannel, 517 F.3d 1172 (9th Cir. 2008).
9th Circuit finds no breach of plea agreement in government’s failure to recommend acceptance reduction. (790) In defendant’s plea agreement to possessing child pornography, the government agreed to move for a three-level reduction for acceptance of responsibility if defendant demonstrated “an affirmative acceptance of personal responsibility” and provided complete and accurate information during sentencing. The PSR recommended an increase for distributing child pornography, even though that increase was not included in the plea agreement. Defendant argued that the evidence was insufficient to show that he had distributed child pornography. The government responded that defendant had not accepted responsibility because his objection to the distribution enhancement repudiated his prior admissions. The Ninth Circuit found that the government’s argument did not breach the plea agreement. U.S. v. Cannel, 517 F.3d 1172 (9th Cir. 2008).
9th Circuit finds that government did not breach plea agreement by calling witness at court’s request during sentencing. (790) The defendant and the government entered into a plea agreement in which the parties agreed to recommend a specific guidelines calculation. At sentencing, the district court questioned whether the agreement failed to take into account an enhancement that should apply. The court directed the government to call a witness, and after hearing the prosecutor question the witness and questioning the witness itself, the court applied the enhancement. The Ninth Circuit held that the government had not breached the plea agreement by acceding to the court’s request to call the witness and in participating in examining the witness. U.S. v. Allen, 434 F.3d 1166 (9th Cir. 2006).
9th Circuit says failure to inform defendant of appeal waiver is plain error. (790) Defendant’s plea agreement contained a waiver of his right to appeal. During the change-of-plea colloquy, the magistrate judge failed to inform defendant of the waiver, as required by Federal Rule of Criminal Procedure 11(b)(1)(N). The district court reviewing the plea colloquy likewise failed to inform defendant of the waiver. The Ninth Circuit held that in the absence of any evidence that defendant knew that he had waived his right to appeal, the failure to comply with Rule 11 constituted plain error. U.S. v. Arellano-Gallegos, 387 F.3d 794 (9th Cir. 2003).
9th Circuit finds plea colloquy gave defendant sufficient notice of maximum penalty. (790) During defendant’s guilty plea colloquy, the district court informed him that he could be sentenced to life imprisonment on the drug charges to which he was pleading guilty. The court also informed defendant that it could sentence him to more than the Sentencing Guidelines recommend. The Ninth Circuit rejected defendant’s contention that the court was required to inform defendant that he could be subject to specific enhancements under the Sentencing Guidelines. U.S. v. Barragan-Espinoza, 350 F.3d 978 (9th Cir. 2003).
9th Circuit holds that government did not breach plea agreement limiting information it could provide to probation office. (790) Defendant pleaded guilty to a drug offense based on his participation in transporting a load of marijuana across the border. His plea agreement provided that the government would “forego recommending inclusion of facts for relevant conduct purposes” that concerned any marijuana loads that defendant facilitated after the one underlying the offense of conviction. The government provided information to the probation officer concerning drug offenses that defendant committed after the offense of conviction, but it argued against using that information as relevant conduct in fixing defendant’s offense level. The Ninth Circuit held that because the government had not urged that the post-offense conduct be used as relevant conduct, it did not breach the plea agreement. U.S. v. Franco-Lopez, 312 F.3d 984 (9th Cir. 2002).
9th Circuit finds government breached plea agreement by arguing for facts inconsistent with agreed sentencing recommendation. (790) Defendant agreed to plead guilty to drug offenses in a plea agreement that provided (1) that the government would recommend a sentence below the mandatory minimum sentence if defendant met the requirements of the “safety valve” in § 5C1.2, and (2) that the parties could “recommend and argue for adjustments” not addressed in the agreement. The government argued to the probation officer and the court that defendant was the organizer or leader of the drug organization. The district court agreed, and that finding rendered defendant ineligible for the safety valve. The Ninth Circuit held that the plea agreement contemplated that the government would remain neutral with respect to matters that would affect the safety valve determination and that the government breached the plea agreement by arguing for a fact that would make it impossible for defendant to qualify for the safety valve. U.S. v. Franco-Lopez, 312 F.3d 984 (9th Cir. 2002).
9th Circuit finds prosecutor’s ambiguous statement at hearing months before sentencing did not violate plea agreement. (790) The plea agreement required defendant’s cooperation in exchange for the government’s agreement to recommend the low end of the guideline range. At a hearing seven months before sentencing, the court expressed impatience with the delay in sentencing defendant, noted that defendant would be a more valuable witness once he had been sentenced, and said that it was unlikely to impose a sentence below the high end of the range. The prosecutor replied that the government’s position “is not necessarily inconsistent with the Court’s with regards to the defendant’s ultimate sentencing.” At sentencing, the government recommended the low end of the sentencing range. The Ninth Circuit held that the prosecutor’s ambiguous statement at the earlier hearing was not an attempt to influence the district court to impose a sentence other than one at the low end of the range. U.S. v. Quach, 302 F.3d 1096 (9th Cir. 2002).
9th Circuit remands to decide if plea bargain required government to seek substantial assistance departure. (790) Defendant’s plea agreement required the government to file a substantial assistance downward departure motion if defendant was the “but for” cause of the apprehension of a fugitive co-defendant. Defendant provided assistance in apprehending the co-defendant, but at sentencing the government declined to file a departure motion because defendant had not completed his cooperation. The Ninth Circuit held that the government misinterpreted the plea agreement by requiring defendant to complete his cooperation before receiving a downward departure motion. The court remanded so that the government could consider whether defendant had complied with the plea agreement. U.S. v. Quach, 302 F.3d 1096 (9th Cir. 2002).
9th Circuit holds government’s sentence recommendation did not breach plea agreement. (790) The agreement was predicated on the assumption that defendant’s criminal history would be Category I, but said it was based on information that was then known and could change based on investigation by the probation officer. The probation officer found defendant’s criminal history category was III. Therefore, contrary to the agreement, the government did not recommend home detention because defendant was no longer eligible for it. At sentencing, defense counsel acknowledged that “the government is certainly within their right to agree with the recommendation of the presentence investigation report.” However, immediately after sentencing, defendant moved to withdraw the plea arguing for the first time that the government breached the plea agreement. On appeal, the Ninth Circuit found no breach, noting that the plea agreement conditioned the government’s recommendation on defendant’s eligibility for home detention. The panel also rejected defendant’s argument based on U.S. v. Nelson, 222 F.3d 545 (9th Cir. 2000) that the government had an obligation not to recommend custody at sentencing, despite the changed circumstances. U.S. v. Trapp, 257 F.3d 1053 (9th Cir. 2001).
9th Circuit holds standard of review for claim that government breached plea agreement is unsettled. (790) The Ninth Circuit’s standards for reviewing a claim that the government has breached a plea agreement have been inconsistent. See U.S. v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000) (comparing U.S. v. Schuman, 127 F.3d 815, 817 (9th Cir. 1997) – de novo standard – with U.S. v. Salemo, 81 F.3d 1453, 1460 (9th Cir. 1996) – clearly erroneous standard); U.S. v. Johnson, 187 F.3d 1129, 1134 (9th Cir. 1999) (same). In this case, the Ninth Circuit found it unnecessary to decide which standard governs “because we conclude that under either standard the outcome is the same: the government did not breach the plea agreement.” U.S. v. Trapp, 257 F.3d 1053 (9th Cir. 2001).
9th Circuit, en banc, rejects “manifest injustice” test for withdrawing guilty plea. (790) In 1983, Rule 32(e), Fed. R. Crim. P. was amended to permit a defendant to withdraw his plea before sentencing for “any fair and just reason.” Despite the rule, the Ninth Circuit continued to apply a higher “manifest injustice” test from a prior version of the rule where the defendant sought to withdraw his plea after a co-defendant had been sentenced. See U.S. v. Ramos, 923 F.2d 1346, 1358-59 (9th Cir. 1991); U.S. v. Hoyos, 892 F.2d 1387, 1400 (9th Cir. 1989). In the present case, the en banc Ninth Circuit overruled these cases and held that the “fair and just” standard of Rule 32(e) applies to any motion for plea withdrawal made before sentencing. In this case, a co-defendant who had been sentenced filed a letter and declaration exonerating defendant. The panel held that this may have provided a “fair and just reason” to withdraw the plea, and therefore remanded the case to the district court to apply the proper standard. U.S. v. Ruiz, 257 F.3d 1030 (9th Cir. 2001) (en banc).
9th Circuit upholds alien’s guilty plea despite advice that sentence increase “may” apply. (790) In the middle of his bench trial for re-entry after deportation in violation of 8 U.S.C. § 1326(a), defendant agreed to plead guilty, and the court immediately took his plea. The court first advised him that the maximum sentence was two years, but the government responded that “possibly the government will be filing an enhancement,” so the court advised the defendant that “with the (b)(2) enhancement if it so applies, it’s a maximum of twenty years.” The plea occurred shortly after the Supreme Court’s decision in Almendarez-Torres v. U.S., 523 U.S. 224, 235 (1998) which clarified that reference to § 1326(b) need not be included in the indictment as an element of the offense nor proven to the jury. In an opinion written by Judge O’Scannlain, the en banc Ninth Circuit held that defendant was sufficiently advised of the maximum sentence under Fed. R. Crim. P. 11. Judge Berzon, joined by Judges Pregerson and Reinhardt, dissented, arguing that the district court’s statements to the defendant about the maximum penalty did not comply with Rule 11. U.S. v. Barrios-Gutierrez, 255 F.3d 1024 (9th Cir. 2001) (en banc).
9th Circuit reverses where government failed to follow sentencing recommendations in plea agreement. (790) The plea agreement stated that the government would recommend a four-level downward departure under § 5K2.0 because of defendant’s participation in the Western District of Washington’s “fast track” program for illegal re-entry prosecutions, including the defendant’s stipulation to reinstatement of deportation, waiver of appeal and agreement to plead guilty before indictment. However, the probation officer made no mention of the fast track agreement and recommended only a two-level downward departure. After the court said it was going to depart only two levels, the Assistant U.S. Attorney said “the recommendation of probation is appropriate.” When defense counsel pointed out that this was inconsistent with the plea agreement, the prosecutor explained that the government altered its recommendation because the court “appears to have already ruled on the degree of departure.” On appeal, the Ninth Circuit reversed, holding that the government breached the plea agreement. Its excuse was “to no avail as the district court had not at that point heard from the government, and therefore could not yet have legally imposed a sentence.” See Fed. R. Crim. P. 32(c)(3)(D). More importantly, the defendant bargained for a “united front” from both the prosecution and the defense, and the government’s recommendation violated that agreement. The case was remanded to a different judge for resentencing. U.S. v. Camarillo-Tello, 236 F.3d 1024 (9th Cir. 2001).
9th Circuit holds prosecutor’s comments violated plea agreement and required resentencing by a different judge. (790) In the plea agreement the government agreed to “make no recommendation regarding sentence.” However at sentencing, after defense counsel characterized some of the prior offenses as “petty,” the prosecutor responded by pointing out the “serious nature” of some of the prior offenses and added that the defendant had run from the police 25% of the time he had been arrested and had failed to appear 45% of the time. Noting that prior cases have been inconsistent about the standard of review, the Ninth Circuit concluded that review in this case should be de novo because the only issue was whether the prosecutor’s statements “as a matter of law” constituted a “recommendation regarding sentence.” Because the comments did not provide any new information or correct any factual inaccuracies, they could have been made for only one purpose: to influence the district judge to impose a harsher sentence. This breached the plea agreement because it constituted a recommendation regarding sentence. The panel found that the harmless error rule does not apply when the government breaches a plea agreement. The panel also found it was required by Santobello v. New York, 404 U.S. 257 (1971) to remand the case to a different judge for resentencing. U.S. v. Mondragon, 228 F.3d 978 (9th Cir. 2000).
9th Circuit says plea to felony drug count requires advice about ineligibility for food stamps and social security benefits. (790) Under 21 U.S.C. 862a, a person convicted of a federal or state felony “which has as an element the possession, use or distribution of a controlled substance” is ineligible for certain food stamp and social security benefits. The Ninth Circuit ruled that this ineligibility is a “direct consequence” of a guilty plea to such a charge, and therefore the defendant must be informed about this ineligibility during the guilty plea colloquy. A separate section, 21 U.S.C. § 862(a) (the only difference is the parentheses) makes any defendant convicted of three drug distribution offenses ineligible for all federal benefits, but the majority held that even though this was also a “direct” consequence, the court is not required to advise a defendant of ineligibility under § 862(a) because a “judge will normally have no reason to know of this effect at the time of a Rule 11 plea hearing” since the PSR detailing defendant’s criminal history is not prepared until after the plea. The majority found support for this “practical consideration” in the Advisory Committee Notes to the 1974 amendment to Rule 11(c). In any event, the court found the failure to advise the defendant here was harmless because defendant’s ineligibility for these benefits would not have affected his decision to plead guilty and avoid a life sentence. Judge Noonan dissented, characterizing the majority’s statements as “dicta since they do not control the outcome of the appeal.” U.S. v. Littlejohn, 224 F.3d 960 (9th Cir. 2000).
9th Circuit finds plea agreement obliged government not to oppose safety valve. (790) In the plea agreement, the government said it had a “good faith belief” that defendant was eligible for the safety valve under § 5C1.2 “based on information currently available.” Nevertheless, when the presentence report stated that defendant was not eligible because guns were found in the house near the drugs, the government offered the testimony of its case agent in opposition to the safety valve at sentencing. The Ninth Circuit held that the plea agreement required the government not to oppose defendant’s request for the safety valve. The government’s statements in the agreement encouraged defendant to believe that the safety valve would apply to his case, and “no facts were developed after the time of [defendant’s] plea which could have altered the government’s calculus and undercut its duty to perform under the agreement.” The government was aware of the guns at the time it entered into the plea agreement. U.S. v. Nelson, 222 F.3d 545 (9th Cir. 2000).
9th Circuit finds no breach where government acknowledged its calculation error but stood by the plea agreement. (790) In the plea agreement, the government agreed to recommend a base offense level of 32. However, after the PSR pointed out that the drug quantity equaled level 34, the government acknowledged its calculation error but stated that it stood by its plea agreement to recommend a base offense level of 32. The defendant did not object, but merely pointed out the discrepancy between the PSR and the plea agreement. Accordingly, the Ninth Circuit reviewed the issue only for plain error and found that the government did not breach the plea agreement by “honestly providing the correct calculations and responding to the district court’s direct questions.” “[H]onest response of the government to direct judicial inquiry is a prosecutor’s professional obligation that cannot be barred, eroded or impaired by a plea agreement.” U.S. v. Maldonado, 215 F.3d 1046 (9th Cir. 2000).
9th Circuit finds government did not breach agreement not to seek “vulnerable victim” adjustment. (790) The government pledged in the plea agreement not to “seek an upward adjustment of the sentence predicated upon the vulnerable victims or sophistication of the offense role.” The Ninth Circuit found that it honored this promise. The prosecution said at the outset of the sentencing hearing that it had agreed it would not seek a victim-related adjustment and therefore, government counsel said “I feel that I cannot comment one way or the other.” The Ninth Circuit found that the probation officer was the first and only party to suggest a victim-related adjustment. Although the prosecution eventually told the court that the employees of the company were the “true victims” of the crime, “it did not do so until after the court had already decided to apply the vulnerable victim adjustment. Nothing in the plea agreement restricted the government’s right to argue for the highest possible sentence, even though the range might include a vulnerable victim adjustment.” There was no evidence of a conspiracy between the prosecution and the probation officer to recommend the adjustment. U.S. v. Anglin, 215 F.3d 1064 (9th Cir. 2000).
9th Circuit finds no breach of plea agreement where judge denied government’s request to withdraw from it. (790) The parties entered into a written jury waiver agreement in which the government agreed to recommend the low end of the guideline range. At sentencing, however, the prosecutor said he had received new information which “placed the defendant in a different light,” and asked permission to withdraw any sentence recommendation. The court responded that “I feel that this whole thing was negotiated based upon a recommendation of low end, and I will impose the sentence as recommended.” On appeal, the Ninth Circuit found no breach because “the government grudgingly made a low end recommendation before sentencing occurred and was not allowed to withdraw it.” Moreover, unlike U.S. v. Myers, 32 F.3d 411 (9th Cir. 1994) and U.S. v. Johnson, 187 F.3d 1129, 1135 (9th Cir. 1999), the district court followed the low end recommendation required by the agreement. Thus, defendant “received every benefit of the jury waiver agreement and, therefore, has no viable contract claim.” U.S. v. Coleman, 208 F.3d 786 (9th Cir. 2000).
9th Circuit invalidates waiver of appeal where court failed to give proper advice under Rule 11. (790) A waiver of the right to appeal cannot be enforced unless it appears that defendant’s guilty plea was knowing and voluntary. Under Rule 11(c), Fed. R. Crim. P., the district court must determine that the defendant understands the nature of the charge to which the plea is offered. A statement by the defendant and his attorney that they discussed the nature of the charge is insufficient because “vague references to discussion of the charges does not provide a complete record showing compliance with Rule 11(c).” U.S. v. Smith, 60 F.3d 595, 598 (9th Cir. 1995). In this case, there was no mention of what acts defendant must have committed in order to be found guilty of the drug charges, and the plea agreement also did not contain such statements. Relying on Smith, the Ninth Circuit reversed defendant’s convictions and remanded the case to permit him to plead anew. Because of the Rule 11 violation, his waiver of appeal was not knowing and voluntary. U.S. v. Portillo-Cano, 192 F.3d 1246 (9th Cir. 1999).
9th Circuit finds plea involuntary where defendant was misled about likely sentence. (790) Defendant, an immigration inspector, was charged with bribery and violating the civil rights of female illegal aliens from whom he sought sexual favors. On the first day of trial, he pled guilty in exchange for reducing the felony civil rights count to a misdemeanor, in addition to pleading guilty to seven bribery counts. During the Rule 11 plea colloquy, defense counsel tried to clarify what the likely guideline sentence would be, and the court stated that apparently the sentence would be in the range of 10-16 months. Government counsel interjected that there was no agreement as to the appropriate application of the guidelines, but he too said that the guideline range would be 10-16 months. Thereafter, the presentence report recommended 199 months, because the civil rights guideline, 2H1.1(a)(1) says that the sentence should be based on the “underlying offense,” which in this case was criminal sexual abuse under 2A3.1. Defendant moved to set aside his plea to the civil rights misdemeanor, but the district court refused, although it recalculated his sentence and departed downward to 109 months (12 months on the misdemeanor and 97 months on the bribery counts). On appeal, the Ninth Circuit reversed, holding that although the court was not obligated to tell the defendant what his exact sentence would be under the guidelines, he “should not be told one thing about the guidelines during the Rule 11 colloquy, and experience another.” Because of the misinformation provided at the Rule 11 colloquy the court said that defendant was not “equipped intelligently to accept the plea offer made to him.” Therefore his plea was involuntary and he showed a fair and just reason for withdrawing his guilty plea to count 1. U.S. v. Toothman, 137 F.3d 1393 (9th Cir. 1998).
9th Circuit permits concurrent sentence for violating supervised release and underlying offense. (790) Defendant violated his supervised release by committing a new bank robbery. The district court accepted his plea to bank robbery without discussing the possibility of a consecutive sentence for violating supervised release. Later, in a consolidated hearing, the court sentenced defendant to twelve months for violating his supervised release and 46 months consecutive for the bank robbery. On appeal, defendant argued that his plea was involuntary because the court did not advise him that the sentence was required to be consecutive under guideline § 5G1.3. The Ninth Circuit rejected the argument, noting that despite the language of 5G1.3, 18 U.S.C. § 3584(a) permits a court to impose concurrent sentences. See U.S. v. Wills, 881 F.2d 823, 825 (9th Cir. 1989); U.S. v. Lail, 963 F.2d 263, 264 (9th Cir. 1992). Because the district court had discretion to impose concurrent sentences, the judge had no duty to warn defendant that the sentences might be consecutive. Therefore defendant’s plea was not involuntary. U.S. v. Kikuyama, 109 F.3d 536 (9th Cir. 1997).
9th Circuit says failure to warn that defendant would be bound even if court rejected plea agreement was not plain error. (790) The district court failed to recite the warning in Rule 11(e)(2) that the defendant would be bound by her plea even if the court later chose to reject the terms of the plea agreement. However, at sentencing, the court followed the plea agreement and imposed the sentence recommended by the government. The Ninth Circuit found no plain error. Since defendant received the sentence she bargained for in exchange for the entry of her guilty plea, the error did not affect her substantial rights. U.S. v. Chan, 97 F.3d 1582 (9th Cir. 1996).
9th Circuit interprets plea agreement to require substantial assistance. (790) Relying on U.S. v. Floyd, 1 F.3d 867, 869 (9th Cir. 1993), defendant argued that his plea agreement required the government to move for a downward departure under guideline § 5K1.1 without regard to whether the government felt that he had actually provided substantial assistance. The Ninth Circuit rejected the argument, finding that Floyd was not controlling because defendant’s plea agreement contained a more specific reference to the substantial assistance guideline. It said that if he complied with the agreement, the government would move for a downward departure “pursuant to the provisions of U.S.S.G. § 5K1.1.” The parallel language in Floyd’s agreement said only that the government would recommend a downward departure “from the sentencing guidelines and the mandatory minimum sentence.” In U.S. v. Kelly, 18 F.3d 612, 616 (8th Cir. 1994), the Eighth Circuit held that the phrase “pursuant to guideline § 5K1.1” was sufficient to link the defendant’s cooperation to the substantial assistance requirement. Accordingly, the Ninth Circuit held that the district court did not err in construing the defendant’s agreement to require substantial assistance. U.S. v. Anthony, 93 F.3d 614 (9th Cir. 1996).
9th Circuit says government reserved right to oppose “safety valve” credit in plea agreement. (790) In the plea agreement, the government reserved the right to argue that the “safety valve” was inapplicable “based on the criteria set forth therein,” including the right to argue that defendant had an aggravating role despite the government’s agreement not to seek a leadership enhancement. Defendant argued that agreement not to seek a leadership enhancement prevented the government from arguing the fifth prong of the safety valve, i.e. that defendant truthfully provided all information to the government. The Ninth Circuit rejected the argument, ruling that the language of the plea agreement was not ambiguous, and clearly allowed the government to oppose the application of the safety valve on all grounds. The government did not breach the plea agreement. U.S. v. Ajugwo, 82 F. 3d 925 (9th Cir. 1996).
9th Circuit says extension of supervised release cannot exceed maximum originally imposable term. (790) In Rodriguera v. U.S., 954 F.2d 1465, 1468 (9th Cir. 1992), and U.S. v. Sanclemente-Bejarano, 861 F.2d 206, 208 (9th Cir. 1988), the Ninth Circuit held that a term of supervised release can be extended, potentially to a life term. However those cases involved offenses committed before the sentencing guidelines became effective and did not discuss whether an extension under 18 U.S.C. § 3583 (e)(2) could exceed the maximum originally imposable term. Accordingly, the Ninth Circuit distinguished the above cases and held, in harmony with the Fourth and Eleventh Circuits, that an extension of supervised release cannot exceed the maximum originally imposable term. In the present case, defendant’s supervised release term could be extended only to a maximum of five years, with three additional years of imprisonment if his supervised release were revoked. Thus any error in failing to advise him at the time of his plea of the effect of a term of supervised release was harmless because he was told that he could be sentenced to 40 years in custody. U.S. v. Fuentes-Mendoza, 56 F.3d 1113 (9th Cir. 1995).
9th Circuit finds bad advice was harmless where defendant knew he could receive a longer sentence. (790) Defendant complained that when he pled guilty to conspiracy, the district court failed to advise him he could be sentenced to a three-year term of supervised release and could face two additional years in prison if his term of supervised release was revoked. However, Judges Wiggins, Fletcher and Hall held that the failure to advise him of the statutory maximum penalty was harmless, because he knew before pleading guilty that he could be sentenced to 25 years, which was much longer than the 11-year sentence he received. U.S. v. Alber, 56 F.3d 1106 (9th Cir. 1995).
9th Circuit says plea agreement breach cannot be raised for first time on appeal. (790) As part of the plea agreement, defendant waived his right to appeal, “if he [was] sentenced pursuant to paragraph 3 of [the] plea agreement.” Although he was sentenced pursuant to paragraph 3, he nevertheless filed a notice of appeal, claiming for the first time on appeal that the government had breached the plea agreement. The 9th Circuit dismissed the appeal, noting that issues not presented in the district court cannot generally be raised for the first time on appeal. A breach of the agreement is the sort of claim that a defendant ordinarily will recognize immediately and should be required to raise when the alleged breach can still be repaired. The court distinguished U.S. v. Gonzalez, 16 F.3d 985 (9th Cir. 1994), on the ground that the defendant there did not appeal the government’s breach of the plea agreement. U.S. v. Robertson, 52 F.3d 789 (9th Cir. 1994).
9th Circuit says defendant was not misled into pleading guilty by earlier presentence report. (790) Defendant originally pled guilty to a felony and a misdemeanor. When the presentence report indicated that the probation officer would have recommended a lower sentence if defendant had pled to two felonies, the court permitted defendant to plead to two felonies instead. At the change of plea hearing, the judge warned that the sentence on the two felonies might be higher despite the recommendation. Sure enough, at sentencing, the court rejected the probation officer’s recommendation and imposed a higher sentence. On appeal, the 9th Circuit affirmed, noting that defendant did not challenge the validity of his plea in the district court and “thus waived any objections except those which fall within one of the narrow exceptions to the waiver rule or constitute plain error.” U.S. v. Flores-Payon, 942 F.2d 556, 558-60 (9th Cir. 1991). Defendant showed neither. U.S. v. Sanders, 41 F.3d 480 (9th Cir. 1994).
9th Circuit upholds waiver of appeal of any sentence within judge’s “discretion.” (790) In his plea agreement, defendant waived the right to “appeal any sentence within the discretion of the district judge.” Nevertheless, defendant appealed, claiming that this language only waived the right to appeal from the district court’s discretionary rulings. The 9th Circuit rejected the argument, noting that this would make the waiver “illusory,” since purely discretionary decisions such as the refusal to depart, are not reviewable on appeal. Rather, this waiver language means that defendant cannot appeal as long as the district court sentences “within the discretion provided by the Guidelines.” Since the district court here acted within that discretion, and defendant did not claim that the court deviated from the guidelines, the appeal was dismissed. U.S. v. Khaton, 40 F.3d 309 (9th Cir. 1994).
9th Circuit says defendant must be told that federal sentence may not be concurrent with later state sentence. (790) A federal defendant facing a pending state prosecution must be told that the district court cannot impose his federal sentence concurrently with his future state sentence. Even though the district court now has discretion under 18 U.S.C. § 3584 to impose a federal sentence concurrently with a state sentence which has already been imposed, it cannot do so with a future state sentence. Because the imposition of a consecutive sentence is a direct consequence of a federal guilty plea, the 9th Circuit held the failure to warn a defendant renders his plea involuntary and subject to withdrawal. U.S. v. Neely, 38 F.3d 458 (9th Cir. 1994).
9th Circuit says government breached plea agreement by not recommending low end of range. (790) In exchange for defendant’s guilty plea the government agreed “to recommend a sentence at the low end of the applicable guideline range.” At sentencing, however, the government made no recommendation, except to direct the court’s attention to facts that suggested a more severe sentence. When the judge imposed a sentence above the low end of the range, defense counsel objected to the government’s failure to comply with the plea agreement. In response, the court said it understood that the government was recommending the low end, and the prosecutor agreed, stating that she assumed that the court had read the presentence report and the plea letter which contained the government’s recommendation. Nevertheless, on appeal, the 9th Circuit reversed, stating that the government had breached the agreement and “the harmless error rule does not apply to the law of contractual plea agreements.” Judge Tang dissented. U.S. v. Myers, 32 F.3d 411 (9th Cir. 1994).
9th Circuit says pleas to prior convictions were not constitutionally invalid. (790) In reviewing the validity of state court pleas, the federal court inquires only if the plea colloquy satisfies constitutional requirements. That is, the defendant must voluntarily waive the right to a jury trial, the right to confront one’s accusers, and the privilege against self incrimination. Boykin v. Alabama, 395 U.S. 238, 243 (1969). Here, the record showed that defendant waived all three of these rights. There is no Constitutional requirement for the record of a plea in state court to contain a factual basis for the plea. Nor must the court give specific advice about the right against self-incrimination, as long as the defendant is aware of the right. Since defendant did not show a Constitutional violation, the district court correctly relied on his prior convictions in calculating his criminal history score. U.S. v. Ullyses-Salazar, 28 F.3d 932 (9th Cir. 1994), overruled on other grounds by U.S. v. Gomez-Rodriguez, 96 F.3d 1262 (9th Cir. 1996).
9th Circuit says attorney’s incorrect prediction does not justify withdrawing plea. (790) Defendant complained that he should have been allowed to withdraw his guilty plea because his sentence was far tougher than he expected. The 9th Circuit rejected the argument, stating that “even if [defendant’s] attorney and the parties didn’t realize the guidelines allowed a life sentence, an attorney’s incorrect prediction does not, in and of itself, justify withdrawing a plea.” Moreover, the defendant acknowledged the possibility of a life sentence during the district court’s comprehensive plea hearing. U.S. v. Thornton, 23 F.3d 1532 (9th Cir. 1994).
9th Circuit says government’s breach permitted appeal despite waiver. (790) In this amended opinion, the 9th Circuit acknowledged that under U.S. v. Flores-Payon, 942 F.2d 556 (9th Cir. 1991), a defendant’s failure to raise the breach of the plea agreement in the district court “would prevent him from arguing on appeal that he is entitled to a remedy for the breach.” However, the court said that “this has no bearing on whether the government did in fact breach the agreement for purposes of determining whether [defendant] may appeal at all.” Here, “[b]y opposing the acceptance of responsibility adjustment, the government by its breach of the agreement released Gonzalez from his promise in paragraph 11 not to appeal.” “Once released from the bar of the appeal waiver, Gonzalez may raise any claim relating to the sentence, except a contention that first should have been presented to the district court.” Here, his claim that he was entitled to two points for acceptance of responsibility was made in the district court, and was therefore properly raised on appeal. U.S. v. Gonzalez, 16 F.3d 985 (9th Cir. 1994).
9th Circuit holds government breached plea agreement, thereby releasing defendant from waiver of appeal. (790) In an earlier opinion in this case, a motions panel of the 9th Circuit refused to dismiss the appeal, even though the defendant waived appeal. U.S. v. Gonzalez, 981 F.2d 1037 (9th Cir. 1992). After full briefing, a different panel of the 9th Circuit held that the government breached the plea agreement by opposing an adjustment for acceptance of responsibility after the district court had indicated it was inclined to grant the reduction. The court rejected the government’s argument that defendant’s failure raise the breach issue in the district court barred him from raising it on appeal. Defendant’s failure to raise the issue estopped him from arguing that he was entitled to the adjustment “exclusively because of the breach.” But this did not bar him from arguing that the government did in fact breach the agreement for purposes of determining whether he could appeal. “In opposing the acceptance of responsibility adjustment, the government released Gonzalez from his duty to abide from the plea agreement, including his promise not to appeal.” U.S. v. Gonzalez, 16 F.3d 985 (9th Cir. 1993).
9th Circuit says plea agreement did not cure failure to advise that sentence recommendation was not binding. (790) Defendant pled guilty pursuant to a written plea agreement which required the government to recommend a sentence of 10 months. The plea agreement also provided that the court was not bound by the recommendation and that failure to follow the recommendation would not be a basis to withdraw from the agreement. However, at the time of the guilty plea the district court did not ask defendant, as required by Fed. R. Crim. P. 11(e)(2), whether he understood that the court was not bound by the recommendation and that he would not be able to withdraw his plea. The Ninth Circuit found that the error was not harmless. There is a marked difference between being warned in open court by a district judge and reading some boiler-plate language in a plea agreement. U.S. v. Kennell, 15 F.3d 134 (9th Cir. 1994).
9th Circuit bases sentence on dismissed charges to which defendant stipulated in plea agreement. (790) The plea agreement provided that defendant would plead guilty to three cocaine charges and the government would dismiss the twelve food stamp charges. However, in the agreement, defendant also stipulated that he had acquired food stamps to which he was not legally entitled, by unlawfully buying them, with a total face value of $48,555. On appeal, he argued that it was unfair to base the sentence on those charges. The 9th Circuit found no error, distinguishing U.S. v. Castro-Cervantes, 927 F.2d 1079 (9th Cir. 1990), and U.S. v. Faulkner, 952 F.2d 1066 (9th Cir. 1991). Unlike those cases, the sentence here was not based on the dismissed charges per se, but on the facts stipulated in the plea agreement. Moreover, unlike those cases, the dismissed charges were not used for an upward departure. The court noted that in U.S. v. Fine, 975 F.2d 596 (9th Cir. 1992), the court permitted dismissed counts to be used in setting the offense level even though, unlike Saldana, Fine did not stipulate to facts establishing the other offenses. U.S. v. Saldana, 12 F.3d 160 (9th Cir. 1993).
9th Circuit says defendant need not be advised of parole eligibility at time of plea. (790) The judge did not violate Rule 11, Fed. R. Crim. P. by failing to advise defendant that he would be ineligible for parole. The 9th Circuit held that Rule 11 does not require the trial court to notify a defendant of parole eligibility before accepting his guilty plea. U.S. v. Roberts, 5 F.3d 365 (9th Cir. 1993).
9th Circuit says failure to advise of supervised release at time of plea required sentence to be vacated. (790) At the time of his plea, the judge told defendant that he faced a statutory maximum sentence of 20 years, but mentioned nothing about supervised release. Before he was sentenced, the Supreme Court upheld the constitutionality of the sentencing guidelines, and accordingly at sentencing, the defendant received the twenty year maximum plus a three year term of supervised release. On appeal, the 9th Circuit held that this violated Rule 11, Fed. R. Crim. P., vacated the sentence, and remanded with instructions either to delete the three year term of supervised release or to allow defendant to replead. U.S. v. Roberts, 5 F.3d 365 (9th Cir. 1993).
9th Circuit finds government did not breach plea agreement where defendant violated law during cooperation. (790) The plea agreement said the government would recommend that the court reduce defendant’s sentence by half if he cooperated with the government against others involved in manufacturing and distributing methamphetamine. The agreement also said that if he disobeyed the law — to be determined by a “probable cause” standard of proof — the agreement would be void. The 9th Circuit held that the government had probable cause to believe defendant was violating the law by continuing to sell precursor chemicals and finished methamphetamine on the sly and for his own profit while he was cooperating with the government. Thus, the government did not breach the plea agreement by refusing to ask for a reduced sentence. U.S. v. Roberts, 5 F.3d 365 (9th Cir. 1993).
9th Circuit says plea agreement cannot be modified by later cooperation agreement without a hearing. (790) In the plea agreement, the defendant agreed to submit to interviews and to testify truthfully, in return for a downward departure motion by the government. Several months later, defendant signed an acknowledgement that no results had been achieved so far, and noted for the first time her responsibility to provide “substantial assistance” to the government. Thereafter, defendant failed to appear and was re-arrested and convicted. The government refused to move for a downward departure. On appeal, Judges Sneed and Hall reversed, finding that the district court violated the parole evidence rule when it looked at the later “acknowledgement” in finding that defendant had agreed to “cooperate” in
the original agreement. Rule 11, Fed. R. Crim. P. requires any modification of the plea agreement to be accepted by the court. The sentence was vacated and the district court was instructed to hold a Rule 11 hearing to determine whether the acknowledgement was a valid modification of the plea agreement. Judge Wallace dissented. U.S. v. Floyd, 1 F.3d 867 (9th Cir. 1993).
9th Circuit considers claim that bargain was breached despite waiver of appeal. (790) Although a defendant’s waiver of his right to appeal is generally enforceable, U.S. v. Navarro-Botello, 912 F.2d 318, 321-22 (9th Cir. 1990), cert. denied, 112 S.Ct. 1488 (1992), the 9th Circuit has considered a defendant’s claim that he was sentenced in violation of a negotiated plea agreement. U.S. v. Serano, 938 F.2d 1058, 1060 (9th Cir. 1991). Accordingly, in this case, the 9th Circuit considered defendant’s argument that the district court’s refusal to consider a downward departure frustrated “the premise upon which [his appeal waiver] was predicated,” thus rendering the waiver void. The court found no violation of the plea agreement, stating that if the defendant’s agreement was based on the expectation that the court would depart downward, “his expectation was wholly unreasonable.” Because no one breached the agreement, the waiver of appeal was upheld and the court declined to address defendant’s other sentencing arguments. U.S. v. Torres, 999 F.2d 376 (9th Cir. 1993).
9th Circuit holds government’s agreement to stand silent at sentencing did not prevent it from arguing against leniency at probation revocation. (790) The 9th Circuit rejected defendant’s argument that the government’s agreement to stand silent at sentencing also bound it to stand silent at the subsequent probation revocation hearing. The court noted that plea bargains are contractual in nature, and there was “no evidence to suggest that, at the time of the bargain, either of the parties ever contemplated that the government would be forever bound to silence at future hearings inquiring into the success or failure of probation.” “Probation would be a useless implement in the criminal justice process if it could not be revoked.” “It would be inconsistent for the prosecution to agree to a bargain that would defeat the purpose of probation.” There was no violation of the plea agreement. U.S. v. Gerace, 997 F.2d 1293 (9th Cir. 1993).
9th Circuit says failure to warn of possible career offender sentence was ineffective assistance. (790) The 9th Circuit held that counsel’s failure to warn defendant, before he entered his guilty plea, of the risk he might be sentenced as a career offender, fell below the level of professional competence required by the Sixth Amendment. The case was remanded to the district court to permit the defendant to show “that there is a reasonable probability, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” The court said this was a “highly fact specific question, best considered in the first instance by the district court.” Risher v. U.S., 992 F.2d 982 (9th Cir. 1993).
9th Circuit reverses where court improperly advised defendant of advantages of plea. (790) In an appeal from a denial of a 28 U.S.C. section 2255 motion to vacate the conviction and sentence, defendant argued the district court violated Fed. R. Crim. P. 11(e)(1) by discussing the implications of pleading guilty with him at a hearing on his request to withdraw his guilty plea. Reversing the denial of the section 2255 petition, the Ninth Circuit found the district court plainly erred by advising the defendant on the merits of pleading guilty and remanded the case to permit the defendant to withdraw his guilty plea. In discussing defendant’s request to withdraw his plea, the court had commented on jailhouse legal advice and that it could give credit for pleading guilty. The opinion noted a “bright line rule” prohibiting all forms of judicial participation before the parties reach a plea agreement and disclose the final agreement in open court. U.S. v. Garfield, 987 F.2d 1424 (9th Cir. 1993).
9th Circuit permits resentencing without restitution where no restitution advice at plea. (790) In violation of Rule 11, Fed. R. Crim. P., the district court failed to advise defendant at the time of his plea that restitution might be ordered. At sentencing, the government recommended, and the court ordered, $70 million in restitution. Defendant argued that this violated the plea agreement, entitling him to have his plea set aside. The 9th Circuit disagreed, noting that this might provide a windfall to defendant if the government were forced by the passage of time to drop its case against him. Rather, the court held that it was preferable to allow the district court to “decide in the first instance whether the interests of justice . . . are better served by merely resentencing without restitution or by allowing [defendant] to withdraw his plea.” U.S. v. Rogers, 984 F.2d 314 (9th Cir. 1993).
9th Circuit holds that neither party is bound by plea agreement until approved by court. (790) Shortly before the court proceedings where the defendant was to sign a plea agreement negotiated on his behalf, he assaulted a deputy marshal and ran from the courtroom. After the defendant was apprehended and returned to the courtroom, the government withdrew the plea agreement. The district court did not err in refusing to compel the government to perform the plea agreement. Neither the defendant nor the government is bound by a plea agreement until it is approved by the court. The detrimental reliance exception to this rule did not apply in this case because the defendant did not plead guilty based on the agreement and did not provide any information or other benefit to the government based on the agreement. U.S. v. Savage, 978 F.2d 1136 (9th Cir. 1992).
9th Circuit holds failure to impose bargained-for sentence under Rule 11(e)(1)(C) required reversal. (790) The plea agreement expressly stated that it was pursuant to Rule 11(e)(1)(C), Fed. R. Crim. P. That rule requires the court to impose the agreed-upon sentence or to reject the guilty plea. At sentencing, the government took the position that the defendant had failed to live up to his obligation to cooperate under the plea agreement and that this failure rendered paragraph 5, but not the entire plea agreement null and void. The district judge agreed, and imposed a sentence greater than the agreed sentence. On appeal, the 9th Circuit reversed, noting that under Rule 11(e)(1)(C) and U.S.S.G. 6B1.3 the district judge was required either to accept the plea agreement and sentence accordingly or to reject the plea agreement and allow the defendant to withdraw his guilty plea. The conviction was reversed. U.S. v. Fernandez, 960 F.2d 771 (9th Cir. 1992).
9th Circuit holds that consecutive sentence on revocation of probation violated original plea agreement. (790) The plea agreement under Fed. R. Crim. P. 11(e) provided that the sentences on the two charges would run concurrently. Before the guidelines became effective, defendant was sentenced to six years for one conviction and consecutive probation for the other. After serving his sentence and being placed on probation, he violated probation and was sentenced to three years in prison. On appeal, the 9th Circuit held that the sentence of imprisonment for violation of probation was not permissible because it was consecutive to the other sentence, and therefore violated the original plea agreement. The court acknowledged that this meant that the order of probation had “almost no teeth.” “Nonetheless this was the bargain the government made and the court accepted and that now must be kept.” U.S. v. Norgaard, 959 F.2d 136 (9th Cir. 1992).
9th Circuit reverses for failure to warn that defendant could not withdraw plea if government’s sentence recommendation was rejected. (790) The government agreed to recommend the minimum mandatory sentence, and to recommend that only the amount of cocaine charged in the count of conviction be considered, and promised not to seek any upward adjustment. In taking the plea, the district court said the recommendations in the plea agreement would bind it in determining the sentence, but did not mention that under Rule 11(e)(2), Fed. R. Crim. P., the defendant would not have the right to withdraw his plea if the court rejected the government’s recommendation. At sentencing, the court rejected the recommendation of 120 months and sentenced defendant to 180 months in prison. On appeal, the government conceded that the court erred in failing to notify the defendant that he would have no right to withdraw his plea, but argued that the error was harmless. The 9th Circuit disagreed, holding that the error could not be harmless unless the record affirmatively showed that the defendant possessed the requisite knowledge. The record here was “wholly insufficient to make that showing.” U.S. v. Graibe, 946 F.2d 1428 (9th Cir. 1991).
9th Circuit holds that defense counsel’s miscalculation of guidelines does not entitle defendant to withdraw plea. (790) Defendant moved to withdraw his plea on the ground that the sentencing law in effect at the time he entered his plea and upon which he and his counsel relied, had been “radically changed.” The change to which counsel referred was the decision in U.S. v. O’Neal, 910 F.2d 663 (9th Cir. 1990), holding that the offense of being a felon in possession of a firearm is a crime of violence under the career offender provisions of the sentencing guidelines. Relying on U.S. v. Garcia, 919 F.2d 1346 (9th Cir. 1990), the 9th Circuit reiterated that an erroneous sentencing prediction or miscalculation of the guideline range “does not entitle a defendant to withdraw his guilty plea.” The defendant was informed of the maximum penalties he faced and that his attorney’s predictions did not bind the court. U.S. v. Oliveros-Orosco, 942 F.2d 644 (9th Cir. 1991).
9th Circuit reverses downward departure for cooperation in absence of government motion. (790) Reaffirming its ruling in U.S. v. Mena, 925 F.2d 354, 355 (9th Cir. 1991) the 9th Circuit stated that the requirement for a government motion in 5K1.1 “might not apply if the prosecution has acted with ‘bad faith or arbitrariness that might conceivably present a due process issue.’” But simply because the government determined defendant had not been truthful in his dealings with it, despite the defendant’s acquittal on the perjury charge, “does not, without more, render the government’s decision arbitrary or demonstrate that it was made in bad faith.” Moreover the court ruled that departure under 5K2.0 for cooperation with the government was inappropriate because this would “render meaningless § 5K1.1’s requirement that any downward departure based on substantial cooperation be premised on a motion for such departure by the government.” Finally the court found nothing in the plea agreement requiring the government to move for a downward departure. Accordingly the sentencing was vacated. U.S. v. Goroza, 941 F.2d 905 (9th Cir. 1991).
9th Circuit applies “relevant conduct” ruling retroactively. (790) Defendant argued that in pleading guilty, he relied on U.S. v. Restrepo, 883 F.2d 781 (9th Cir. 1989), which prohibited aggregation of amounts of cocaine from charges that were dropped. After he pled guilty, but before he was sentenced, Restrepo was withdrawn and a new opinion was filed, 896 F.2d 1228 (9th Cir. 1990) which allowed him to be sentenced for the 2 kilograms in the dropped count. Analyzing his claim under the due process clause, the 9th Circuit distinguished U.S. v. Albertini, 830 F.2d 985 (9th Cir. 1987), on the ground that the defendant here was not convicted of any additional crime, he only had his sentence enhanced because of the withdrawing of an opinion. The court found that defendant had no legitimate expectation of finality in the Restrepo opinion because the government’s petition for rehearing had not yet been denied and therefore the opinion “was not fixed as settled 9th Circuit law.” Judge Reinhardt concurred in the judgment because defendant was given the opportunity to withdraw his plea, and refused to do so. U.S. v. Ruiz, 935 F.2d 1033 (9th Cir. 1991).
9th Circuit rejects “confusion” and parties’ expectations as a rationale for departure downward. (790) The fact that all parties involved initially believed the sentence would be lower does not justify a departure on the basis of “confusion.” As the court stated in U.S. v. Selfa, 918 F.2d 749 (9th Cir. 1990), “the district court regrettably is not usually in a position at the time of the plea to advise the defendant with any precision as to the range within which the sentence might fall.” In any event, the 9th Circuit found that the analogy to Selfa was misplaced, because the defendant did not claim that he was misled or relied on the initial characterizations of what his sentence would be. U.S. v. Sanchez, 933 F.2d 742 (9th Cir. 1991).
9th Circuit gives substantial weight to contemporaneous statements in assessing voluntariess of pleas. (790) Defendant argued that his prior conviction was constitutionally invalid because the government failed to adhere to the terms of the plea agreement. To support his contention, he offered an affidavit stating his understanding that the state would not seek to sentence him as a habitual offender. The 9th Circuit rejected his argument, stating that it attached “substantial weight to contemporaneous on-the-record statements in assessing the voluntariness of pleas.” Here the defendant did not object at the time of sentencing even after it became apparent that the state court would sentence him as a habitual offender. Moreover nothing in the written plea agreement nor any statements on the record revealed an agreement concerning habitual offender status. Finally, a Florida appeals court had already rejected this claim when defendant raised it in a habeas corpus action. U.S. v. Mims, 928 F.2d 310 (9th Cir. 1991).
9th Circuit holds that agreement that defendant was “less culpable” did not prevent government from arguing against “minor role.” (790) The plea agreement stated that the defendant would “be free to argue” for a two point reduction for “minor role” in the crime. The agreement also stated that defendant was “less culpable” than his codefendants. At sentencing, the government argued against a two point reduction in offense level for minor participant, and the defendant argued that this was a breach of the plea agreement. The 9th Circuit rejected the argument, holding that “being less culpable and obtaining minor participant status are not necessarily synonymous.” The court found that the language of the plea agreement prevented defendant from claiming that he “thought” the government meant to equate “less culpable” with “minor participant.” U.S. v. Andrus, 925 F.2d 335 (9th Cir. 1991).
9th Circuit upholds plea even though defendant was not advised that he would receive a term of supervised release. (790) The court advised defendant that the maximum penalty was a $1,000,000 fine and 20 years in custody. In fact, the maximum penalty was a $2,000,000 fine, 40 years in custody and 4 years of supervised release. 21 U.S.C. 841(b)(1)(B). Defendant was sentenced to 10 years in custody plus 4 years of supervised release. The 9th Circuit held that since defendant knew he could be sentenced to a term as long as the one he eventually received, the failure to inform him of the supervised release term did not affect his substantial rights. Here, even if the defendant’s supervised release were revoked on its last day, and he were compelled to serve 4 additional years in prison, his liberty would be restricted one day less than 18 years, and would still be within the 20 year maximum he was informed he could receive. U.S. v. Clay, 925 F.2d 299 (9th Cir. 1991), overruled on other grounds by Gozlon-Peretz v. U.S., 498 U.S. 395 (1991).
9th Circuit holds that defendant need not be advised about the guidelines at the time of the guilty plea. (790) Defendant argued that the revival of the sentencing guidelines by the U.S. Supreme Court by Mistretta, rendered his earlier plea uninformed and unintelligent. The 9th Circuit rejected the argument, stating that at the time defendant entered his guilty plea the district court was not obliged to advise him of the applicability of the guidelines or that he would be ineligible for parole on the conspiracy count. Rule 11 requires only notification of the statutory maximum and minimum sentences. U.S. v. Ramos, 923 F.2d 1346 (9th Cir. 1991), overruled on other grounds by U.S. v. Ruiz, 257 F.3d 1030 (9th Cir. 2001).
9th Circuit upholds plea agreement even though the court did not follow the government’s recommendation. (790) The defendants argued that the contract setting out the plea agreement was voided when the court did not follow the government’s role reduction recommendation. They relied on three contract theories: mutual mistake of fact, failure of consideration, and illusory contract. The 9th Circuit rejected all three arguments, ruling that a defense attorney’s miscalculation under the guidelines does not require the court to grant the defendant’s withdrawal motion. The government abided by its agreement to recommend a role reduction. There was no failure of consideration and the contract was not illusory. U.S. v. Zweber, 913 F.2d 705 (9th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Webster, 996 F.2d 209 (9th Cir. 1993).
9th Circuit holds that attorney’s erroneous sentence prediction did not entitle defendant to withdraw his plea. (790) On the date set for sentencing, defendant moved to withdraw his guilty plea on the ground that his attorney since deceased, had told him that if he pled guilty, he would serve no more than 8 years. The district court denied the motion and sentenced him to 235 months in custody. On appeal, the 9th Circuit held that “it is well established that an erroneous prediction by a defense attorney concerning sentencing does not entitle a defendant to challenge his guilty plea.” The court ruled that the fact that defendant was sentenced under the guidelines does not change that result. The district court did not abuse its discretion in refusing to allow withdrawal of the plea. U.S. v. Garcia, 909 F.2d 1346 (9th Cir. 1990).
9th Circuit limits ability to withdraw plea because of error in calculating sentence. (790) Relying on U.S. v. Bennett, 716 F.Supp. 1137 (N.D. Ind. 1989), defendant sought to withdraw his guilty plea because of a disparity between his plea expectation and the presentence report. Distinguishing Bennett, Judges Fernandez, Tang, and Norris refused to permit withdrawal. Unlike the defendants in Bennett, defendant made no effort to withdraw his plea prior to the imposition of his sentence. Moreover, defendant had been warned of the severity of the sentence he faced. U.S. v. Avila, 905 F.2d 295 (9th Cir. 1990), superseded on other grounds by guideline as stated in U.S. v. Hopper, 27 F.3d 378 (9th Cir. 1994).
9th Circuit upholds refusal to permit defendant to withdraw his guilty plea at sentencing. (790) In making his request to withdraw his guilty plea defendant merely stated, “I feel that I am being blamed for a lot of stuff I didn’t do.” He did not challenge the adequacy of his Rule 11 hearing nor did he allege newly discovered evidence, intervening circumstances, or any other reason for withdrawing his guilty plea that did not exist when he pleaded guilty. The 9th Circuit held that the district court did not abuse is discretion in finding that this unsupported protest was not a fair and just reason for withdrawal. U.S. v. Turner, 898 F.2d 705 (9th Cir. 1990).
9th Circuit holds that government’s opposition to defendant’s Rule 35 motion did not breach the plea agreement. (790) At the time of sentencing the government recommended five years pursuant to the plea agreement. Nevertheless, the defendant was sentenced to 10 years. Later when the defendant filed a Rule 35 motion challenging the legality of the sentence the government filed an opposition stating that the 10 year sentence “is not unreasonable.” The 9th Circuit rejected the defendant’s argument that this violated the plea agreement, stating that while it might have been preferable for government counsel to have described the sentence as “legal” instead of saying that it was “not unreasonable,” this one phrase did not “vitiate the bargain.” U.S. v. Roberson, 896 F.2d 388 (9th Cir. 1990), modified, 917 F.2d 1158 (9th Cir. 1990).
9th Circuit refuses to bar government from contesting appeal where plea bargain failed to clearly indicate parties intended such result. (790) The government stipulated defendant was a “minor participant” as part of plea bargain. The court ruled defendant was not a “minor participant,” and refused a two-point reduction from the base level. Defendant contended that the government should be barred from contesting his appeal from the district court’s ruling, since the government had agreed to the two-point reduction. The 9th Circuit held that the agreement did not clearly contemplate such a result, and to imply it would be improper. U.S. v. Howard, 894 F.2d 1085 (9th Cir. 1990).
9th Circuit holds failure to advise of guideline offense level and criminal history category did not render guilty plea involuntary. (790) Defendant argued that because the Sentencing Guidelines are “highly restrictive, if not controlling,” instructing a defendant of the maximum sentence provided by statute is not enough to comply with Fed R. Crim. P. 11. The 9th Circuit disagreed, holding that although the guidelines may increase or “enhance” the range of a particular defendant’s sentence, “the maximum sentence in all cases will never exceed the maximum provided by statute.” Moreover, “the mandatory minimum sentence provided by a particular statute must be pronounced even if the defendant falls under a lower sentencing range under the Sentencing Guidelines.” U.S. v. Turner, 881 F.2d 684 (9th Cir. 1989), abrogation on other grounds recognized by U.S. v. Rodriguez-Razo, 962 F.2d 1418 (9th Cir. 1992).
10th Circuit holds that government’s breach of plea agreement was not plain error. (790) As part of defendant’s plea agreement, the prosecution agreed to recommend a sentence at the low-end of the guidelines range. However, at sentencing, the prosecution ignored this promise and instead emphasized the severity of defendant’s offense. Nevertheless, the court selected a sentence at the bottom of the guidelines range. The Tenth Circuit held that the government’s breach of the plea agreement was not plain error. Defendant did not show a reasonable probability that he would have received a lesser sentence absent the government’s breach. Defendant’s counsel made the court aware of the prosecutor’s obligation to recommend a low-end sentence. The court was quite clear that it considered a sentence at the bottom of defendant’s guidelines range to be “a bargain, relatively speaking.” There was no reason to expect the court would have varied from the guidelines and sentenced even lower had the prosecution fulfilled its end of the plea agreement. U.S. v. Mendoza, 698 F.3d 1303 (10th Cir. 2012).
10th Circuit says government did not breach plea agreement by discussing additional pornography. (790) Defendant was convicted of possessing child pornography. He argued that the government breached the plea agreement because the agreement’s factual recitation noted defendant had 155 images of pornography, but at sentencing, the government provided the court with evidence of 1,155 images. The government said the 155 number in the plea agreement was a typographical error. The Tenth Circuit held that the government did not breach the agreement. The agreement explicitly stated that there would be no restriction on the use of information previously known by the government, or information it could discover through an independent source. It also imposed a duty upon the government to provide the court with all information it deemed relevant, including the entirety of defendant’s criminal activities. Moreover, the plea agreement did not in any way bind the government to the factual recitation. U.S. v. Burke, 633 F.3d 984 (10th Cir. 2011).
10th Circuit finds government breached plea agreement requiring recommendation of sentence reduction. (790) The government promised in defendant’s plea agreement to recommend either a 60-month sentence if defendant received a 16-level crime of violence enhancement, or a sentence at the low-end of his advisory sentencing range if he did not receive that enhancement. It also agreed to recommend a reduction for acceptance of responsibility. The PSR concluded that defendant’s prior offense was not a crime of violence and recommended only an eight-level enhancement. It also described an alleged fight in the county jail between defendant and another inmate, and recommended an upward departure. The Tenth Circuit held that the government breached the plea agreement by arguing in favor of the upward departure and by arguing against the acceptance reduction. The agreement clearly conveyed to any defendant that the government promised not to object to the acceptance reduction, and would not support an upward departure or variance. The promise to recommend a “low-end guideline” range sentence would not ordinarily be interpreted to mean the range arrived after an upward departure or variance. U.S. v. Villa-Vazquez, 536 F.3d 1189 (10th Cir. 2008).
10th Circuit holds that government did not breach plea agreement. (790) Defendant acknowledged in his plea agreement that the conduct charged in any dismissed count as well as uncharged related criminal conduct could be used in calculating his offense level. The government agreed to move for a three-level acceptance of responsibility reduction. The Tenth Circuit ruled that the government did not breach the plea agreement by arguing that additional cocaine was attributable to defendant as relevant conduct and that defendant was subject to a leadership increase. The agreement specifically required the government to provide the court with all information germane to sentencing. Nor did the government breach the agreement by withdrawing its recommendation for an acceptance reduction. The agreement specifically provided that the government could withdraw its recommendation if defendant falsely contested relevant conduct found to be true or obstructed justice. Both preconditions were present. Although the district court found that 65.728 kilograms of cocaine were attributable to defendant as relevant conduct, defendant falsely contested this finding in his affidavit. U.S. v. Rodriguez-Rivera, 518 F.3d 1208 (10th Cir. 2008).
10th Circuit holds prosecutor breached plea agreement by stating misgivings about recommended guideline range. (790) Defendant pled guilty to involuntary manslaughter under a plea agreement that anticipated an offense level of 12 and a sentence of not more than 16 months imprisonment. At sentencing the prosecutor made several statements implying that the offense level of 12 was too low. He noted that defendant was sentenced under the 2000 guidelines, but under the current guidelines defendant would have faced a range of 37-47 months. The district court sentenced defendant to 30 months. The Tenth Circuit reversed, ruling that the prosecutor breached the plea agreement by stating that there were “problems with a guidelines-based sentence,” that such a sentence was “way too law,” and “incredibly low,” that the guidelines did not “make sense to him as a professional prosecutor.” The government owed the defendant a duty to pay more than lip service to a plea agreement. Here, many of the prosecutor’s statements undermined his promises to defendant. The case was remanded for resentencing in front of a different judge. U.S. v. Cachucha, 484 F.3d 1266 (10th Cir. 2007).
10th Circuit holds that government breached plea agreement by arguing for additional sentence enhancements. (790) In defendant’s plea agreement, the parties agreed that the base offense level was
19 and defendant had a presumptive guideline range of 46-57 months. The PSR adopted the admission and agreements of the parties, but the district court was unsatisfied. Before sentencing, it issued an order alerting the parties that it wanted to consider the possibility of offense level increases for a vulnerable victim and a leadership role. The government responded by filing a paper advocating offenses level increase on the bases suggested by the court, and also arguing for an upward departure. At sentencing, the judge applied the two additional enhancements, resulting in a range of 70-87 months. Although the court rejected the government’s argument for an upward departure, it exercised its discretion under the now advisory guideline scheme to impose a sentence of 120 months, 38 percent higher than the top of the adjusted guideline range. The Tenth Circuit held that the government breached the plea agreement – the government’s agreement to the terms of the agreement clearly implied that the government would not argue for sentence enhancing factors outside the agreement. Although the government reserved the right in the plea agreement to take other positions if new facts were developed, that did not happen. Judge Kelly dissented. U.S. v. Scott, 469 F.3d 1335 (10th Cir. 2006).
10th Circuit says defendant who agreed to specific sentence could not raise claim of improper use of mandatory guidelines. (790) Defendant’s plea agreement provided that he should be sentenced at the bottom of the applicable guideline range. Based on stipulated facts, the “tentative” guideline range contemplated by the plea agreement was 70-87 months. The district court disagreed with one of the PSR’s recommended enhancements, and imposed a 63-month sentence. Defendant argued that he was entitled to a remand on the grounds that he was sentenced under a mandatory sentencing scheme, in violation of U.S. v. Booker, 543 U.S. 220 (2005). The Tenth Circuit held that it lacked jurisdiction over the appeal. Defendant received the specific sentence he bargained for as part of his guilty plea. Having exposed himself to a specific punishment, he could not now claim he was the victim of a mandatory sentencing system. Booker did not undermine the validity of sentences imposed under Rule 11(c)(1)(C). U.S. v. Silva, 413 F.3d 1283 (10th Cir. 2005).
10th Circuit holds that government cannot unilaterally declare a breach of plea agreement. (790) The government did not perform several of its obligations under defendant’s plea agreement, recommending a sentence at the upper end of the guideline range as well as an enhancement for obstruction of justice. The government claimed, however, that defendant had previously breached the plea agreement, thus vitiating the agreement. Under Tenth Circuit law, if there is a dispute on the issue of breach of a plea agreement, the district court must hold a hearing to resolve the factual issue. The government may not unilaterally declare a breach of a plea agreement. The government argued that although the judge did not make an express finding of breach, its findings at the sentencing hearing were equivalent to a finding that defendant breached the agreement. However, although the court found that defendant’s allegations about drug planting were untrue, the court did not make a finding that defendant’s allegations constituted obstruction of justice or even criminal conduct in violation of the plea agreement. The Tenth Circuit held that the district court erred by entertaining the government’s sentencing recommendations without holding a hearing and making a determination as to whether the plea agreement had been breached by either defendant or the government. The district court improperly permitted a unilateral declaration of breach, and entertained the unfavorable recommendation that followed, without holding the hearing or making the required findings. U.S. v. Guzman, 318 F.3d 1191 (10th Cir. 2003).
10th Circuit holds that government’s failure to allocute did not breach plea agreement. (790) Defendant’s plea agreement required the government to recommend that defendant be sentenced at the low end of the applicable guideline range. During the plea hearing, the court reviewed the agreement with defendant and reminded him that the government would make this commendation. Defendant’s PSR also noted that the government had agreed to make this recommendation. During the sentencing hearing, the district court indicated that it had read defendant’s PSR “about 3 times.” However, the government did not verbalize its recommendation that defendant be sentenced at the low end of the range, defendant did not object to the government’s failure to do so, and the court itself made no specific reference to the sentencing recommendation. Defendant received a 24-month sentence, the highest permitted under the guideline range. Nonetheless, the Tenth Circuit ruled that the government did not breach the plea agreement by failing to allocute concerning the recommendation. Under U.S. v. Smith, 140 F.3d 1325 (10th Cir. 1998), “the term ‘recommendation’ in a plea agreement does not require the prosecutor to allocute in favor of specific adjustments if the recommendations are contained in the PSR and the prosecutor does not allocute against an agreed-upon adjustment.” The judge was aware of the sentencing recommendation. The plea agreement contained no specific language requiring the government to allocute at sentencing. Judge Henry dissented. U.S. v. Werner, 317 F.3d 1168 (10th Cir. 2003).
10th Circuit finds no plain error in failure to advise that sentence might be consecutive to state sentence. (790) Defendant argued that his due process rights were violated by the district court’s failure to inform him at his plea hearing of the possibility that his federal sentence would run consecutive to his state sentence. Although the panel found it “desirable” to fully inform a defendant of all the consequences of his plea, “including the possibility of a consecutive sentence,” the Tenth Circuit ruled that the district court did not commit plain error when it failed to inform the defendant that his federal sentence could run consecutive to his state sentence. A consecutive sentence does not affect the length or nature of the federal sentence, even though it increases the length of the defendant’s incarceration. Thus, the consecutive nature of a sentence is not a direct consequence about which the defendant must be advised. U.S. v. Hurlich, 293 F.3d 1223 (10th Cir. 2002).
10th Circuit says enhanced sentence was mandatory for defendant with three violent felony convictions. (790) Defendant was charged with violating 18 U.S.C. § 922(g)(1), being a felon in possession of a firearm. Although the PSR clearly indicated that defendant had three previous convictions for a violent felony, see § 924(c)(1), and thus was subject to an enhanced sentence under § 924(e), the district court sentenced defendant to the ten-year statutory maximum under § 924(a)(2) because the government agreed not to seek the § 924(c)(1) enhanced sentence. In U.S. v. Johnson, 973 F.2d 857 (10th Cir. 1992), the Tenth Circuit held that the application of § 924(c)(1) is mandatory and does not require government action to trigger its application. Because defendant’s three Wyoming felony convictions were “violent felonies,” the Tenth Circuit held that defendant’s sentence should have been calculated by applying § 924(c)(1) and not § 924(a)(2). The imposition of an illegal sentence constitutes plain error even if the sentence favors the defendant. However, because defendant was consistently advised throughout the proceedings that the government would not seek the § 924(c)(1) enhancement, he must be given the opportunity to withdraw the plea on remand. U.S. v. Moyer, 282 F.3d 1311 (10th Cir. 2002).
10th Circuit upholds refusal to permit plea withdrawal. (790) Defendant and the government agreed as part of defendant’s plea agreement that both parties would recommend to the court concurrent sentences of 120 months. However, defendant acknowledged in the agreement that the court had the discretion to impose any sentence up to the statutory maximum, and that he could not withdraw his plea simply because the court imposed a sentence up to this statutory maximum. At sentencing, the court reminded the parties that they had not submitted the sentencing recommendation required by the plea agreement. The judge declined to proceed, and the parties agreed to file the needed motion. The court then reaffirmed that it had accepted the agreement, and reminded defendant that it could accept or reject the sentencing recommendation in its sole discretion, and that this would not mean that defendant had not entered a plea of guilty. The parties then filed the sentencing motion. Defendant attempted to withdraw his guilty plea, the court refused, and sentenced defendant to consecutive 120-month terms. The Tenth Circuit upheld the district court’s refusal to permit defendant to withdraw his guilty plea. Defendant’s claim that the court did not accept the plea agreement was inconsistent both with the plea agreement (which acknowledged the court’s complete sentencing discretion) and with express representations made by defendant under oath. The court, after hearing the parties’ sentencing recommendation, sentenced defendant within the guideline range. Under the plea agreement, that was all that was required. U.S. v. Siedlik, 231 F.3d 744 (10th Cir. 2000).
10th Circuit holds that government did not breach implied term of plea agreement. (790) Defendant argued that the government breached an implied term in his plea agreement by seeking a § 2A3.1(b)(1) use of force enhancement. The plea agreement stipulated that certain other enhancements would not apply, but was silent as to the use of force increase. Defendant pointed to sentencing estimates provided by the government during plea negotiations that were lower than his actual sentence. The Tenth Circuit refused to construe the plea agreement’s silence on the use of force enhancement as a government promise not to seek the increase. The government’s obligations to a defendant do not arise from mere silence. Furthermore, the government stated in the agreement that it would not agree to a specific sentence, nor would it agree not to oppose defendant’s request for a specific sentence. The agreement made clear that defendant’s sentence might be different from that discussed in the agreement. Moreover, the agreement contained an integration clause, stating that the agreement represented the complete agreement between the government and defendant. Finally, the district court gave defendant the opportunity to withdraw his plea if he felt the government had violated its agreement. Defendant’s subsequent acceptance of the plea bargain showed that his plea was not predicated on an unfulfilled promised. U.S. v. Reyes Pena, 216 F.3d 1204 (10th Cir. 2000).
10th Circuit holds that guilty plea was not involuntary due to ineffective assistance. (790) Defendant argued that her plea was not voluntary because counsel falsely advised her that a plea would result in sentence of as little as 70-87 months, while trial would result in a sentence of 188-235 months. However, in her petition to enter a guilty plea, defendant stated that she realized that the court could impose the same punishment as if she had chosen to go to trial, and described the 10-year mandatory minimum she faced. The court reminded her of these facts at sentencing. The Tenth Circuit ruled that defendant entered her guilty plea voluntarily. The petition to enter the plea accurately described the statutory minimum penalty and warned defendant that she could receive the same sentence after a guilty plea that she would have received after trial. At the plea hearing, defendant agreed that she was not coerced into pleading guilty and that she made her plea voluntarily. The record also supported the district court’s finding that defendant’s counsel was not ineffective. In her petition to enter a guilty plea, defendant told the district court that she was satisfied with her counsel’s performance. Moreover, based on the terms of the plea agreement, defense counsel accurately described the potential penalties. U.S. v. Gigley, 213 F.3d 509 (10th Cir. 2000).
10th Circuit finds district court made “exemplary” effort to ensure plea was knowing and voluntary. (790) Defendant claimed that her plea was not knowing, intelligent, and voluntary because she did not understand the full extent of the punishment she was facing. The Tenth Circuit found that the record belied this claim. The sentencing judge was deeply concerned that defendant was in a state of denial regarding her predicament and for that reason took substantial steps to rectify any misconceptions. He had a lengthy discussion with defense counsel to ascertain whether counsel had appropriately advised defendant of the risk of incarceration, emphasizing that a mandatory minimum of ten years was “probably more a fact” than a “worse case scenario.” The judge then had a lengthy discussion with defendant, during which he told her that in “all likelihood … you’ll be going to serve a term of incarceration,” carefully discussed the potential applicable sentencing ranges in the guidelines, and even went so far as to tell her that he seldom departed downward from the applicable guideline range. Far from being erroneous, the district court’s efforts to ensure that defendant’s plea was knowing, intelligent, and voluntary were exemplary. U.S. v. Asch, 207 F.3d 1238 (10th Cir. 2000).
10th Circuit says government did not breach plea agreement by advising court of post-plea misconduct. (790) The government agreed, as part of defendant’s plea agreement, not to oppose a three-level acceptance of responsibility reduction. While defendant was in custody awaiting sentencing, the government received FBI reports that defendant stabbed another prisoner. The government passed these reports on to the probation officer, who included the information in his PSR. Based on this information, the district court denied defendant the acceptance reduction. The Tenth Circuit held that the government did not breach the plea agreement by informing the court of defendant’s post-plea criminal conduct. The agreement could not be reasonably construed to bar the government from informing the sentencing court of conduct relevant to sentencing. The district court properly denied the reduction based on defendant’s criminal conduct while in prison awaiting sentencing. Note 2(b) says that voluntary withdrawal from criminal conduct is a relevant consideration in deciding whether to grant an acceptance of responsibility reduction. Joining the majority of circuits to address this issue, the Tenth Circuit held that a sentencing court may consider criminal conduct unrelated to the offense of conviction in determining whether a defendant has accepted responsibility. U.S. v. Prince, 204 F.3d 1021 (10th Cir. 2000).
10th Circuit holds that prosecutor’s offer of dental care did not make plea involuntary. (790) Defendant argued that the district court erred in denying his motion to withdraw his guilty plea. He contended that the plea was not knowing and voluntary because he was suffering from a painful toothache at the time of the proceedings, and the prosecutor told him that if he agreed to plead guilty, the court would order dental care be provided to him. He also contended that the prosecutor told him that the judge would allow him to withdraw his plea. The Tenth Circuit held that despite the toothache, the plea was knowing and voluntary. Defendant presented no evidence, other than his own assertions, that the toothache was so severe that it interfered with his ability to consent to the plea or that, but for the prosecutor’s promise that he would receive dental treatment, he would not have pleaded guilty. Defendant stated at the hearing that he was not under the influence of any drugs, his mind was clear, and that there were no circumstances of any type that were forcing him to plead guilty. Defendant also informed the court that there were no terms of the plea agreement that were not reported in the written agreement. U.S. v. Black, 201 F.3d 1296 (10th Cir. 2000).
10th Circuit says plea agreement permitted use of disclosures made during cooperation. (790) Defendant claimed that the district court violated USSG § 1B1.8 and his plea agreement when it considered at sentencing information he had disclosed in the course of cooperating with the government. The Tenth Circuit found that the terms of defendant’s plea agreement clearly permitted the use of such information. The agreement stated that the government “will not use against him any statements he makes pursuant to this plea agreement in any criminal case… [Defendant] agrees that … [s]tatements he makes and information he provides pursuant to this plea agreement may be used in the plea and sentencing proceedings on the charges [to which he is pleading guilty].” U.S. v. Fortier, 180 F.3d 1217 (10th Cir. 1999).
10th Circuit says failure to make § 5K1.1 motion not breach of plea agreement. (790) Defendant signed a plea agreement stating that “if, in the sole discretion of the government, my assistance is found to be substantial, the government will file a motion for a downward departure” under § 5K1.1. She testified on behalf of the government at the joint trial of two co-conspirators, providing testimony that the government characterized as “helpful” and “very credible.” However, the jury was unable to reach a verdict as to one co-conspirator. For some reason, defendant was not notified as to the date of this co-conspirator’s second trial, and thus did not provide testimony as she had at the first trial. Because she did not testify in the second trial, the government refused to move for a downward departure, instead recommending a sentence at the low end of the guideline range. The Tenth Circuit held that the government’s refusal to move for a downward departure did not breach the plea agreement. The government retained its discretion, in clear and unambiguous language, to determine whether defendant’s assistance was substantial. The government made its determination based on defendant’s failure to testify at the co-conspirator’s second trial. The government did not act in bad faith. U.S. v. Cerrato-Reyes, 176 F.3d 1253 (10th Cir. 1999).
10th Circuit rules that failure to inform defendant of consecutive sentences did not make plea involuntary. (790) Defendant pled guilty to drug charges. He argued that he did not enter his plea agreement voluntarily because neither the court nor defense counsel advised him that his federal sentence would run consecutively to an existing state sentence. The Tenth Circuit ruled that the failure to inform defendant that his state and federal sentences would run consecutively did not make the plea involuntary. Defendant made some statements showing that he was aware of the possibility of receiving a consecutive sentences. Under these circumstances, a district court has no duty to inform the defendant of the possibility of consecutive sentences, even if mandated by the guidelines. U.S. v. Carver, 160 F.3d 1266 (10th Cir. 1998).
10th Circuit holds government breached promise to “defer” to court. (790) The plea agreement allowed defense counsel to argue for an extraordinary departure “under § 5K2.0 et seq., and the government [would] defer to the Court’s determination of this point.” Defendant argued that the government breached this promise by opposing his motion for a departure for excessive pre-indictment delay and coercion and duress. The Tenth Circuit held that the government’s promise to “defer” to the court was a promise not to take a position on defendant’s departure motion. The government admitted this when it described its obligations under the agreement at the sentencing hearing. The provision was not limited to departures based on coercion or duress. The reference to § ”5K2.0 et seq.” could reasonably be interpreted to include §§ 5K2.0 through 5K2.18. Thus, the government agreed to defer to the court’s departure determination under any of § 5K2’s subsections. The government breached its promise by arguing that it did not delay prosecution for tactical reasons and by presenting testimony to support its position. It also breached the agreement by taking a position on whether defendant should receive a coercion or duress departure. U.S. v. Brye, 146 F.3d 1207 (10th Cir. 1998).
10th Circuit says “recommendation” in plea agreement did not require arguing for adjustment. (790) The government promised as part of defendant’s plea agreement to recommend that defendant receive certain sentencing reductions and not receive certain sentencing enhancements. The PSR noted the government’s recommendations, but rejected the government’s position on a firearm enhancement and a minor role reduction. Defendant argued that the government breached the plea agreement by failing to argue for the sentence adjustments it agreed to “recommend” at the sentencing hearing. The Tenth Circuit held that the term “recommendation” in a plea agreement does not require the prosecutor to allocute in favor of specific adjustments if the recommendations are contained in the PSR and the prosecutor does not allocute against an agreed-upon adjustment. Nothing the government said or did here was contrary to the positions it agreed to support. U.S. v. Smith, 140 F.3d 1325 (10th Cir. 1998).
10th Circuit says government’s characterization of relevant conduct did not breach plea agreement. (790) In August 1995, defendant was stopped carrying drugs from California to Kansas. He was arrested again in November 1995 trying to buy drugs from an undercover agent. He pled guilty to the November incident, and the drugs from the August stop were included as relevant conduct. He argued in his Reply Brief that the government breached the plea agreement by commenting on the court’s analysis of the relevant conduct issue. The Tenth Circuit found no breach. The government did not attempt to persuade the court that the August drugs were relevant conduct. Rather, the government briefly answered the court’s questions concerning who makes the ultimate determination of relevant conduct. The government actually stated that the August conduct was not relevant conduct. But it properly characterized the issue on appeal as whether the district court clearly erred in finding the August conduct part of the same course of conduct. The government could not be penalized for correctly stating the legal issue to be addressed by the appellate court. U.S. v. Svacina, 137 F.3d 1179 (10th Cir. 1998).
10th Circuit says plea agreement did not require chance to provide substantial assistance. (790) Defendant’s plea agreement obligated the government to “make the nature and extent of [defendant’s] cooperation known” to the court at sentencing. The agreement acknowledged defendant’s good faith effort to cooperate, but said the decision to file a § 5K1.1 substantial assistance motion rested solely with the government. Although defendant gave truthful information to the government, he was unable render substantial assistance due to circumstances beyond his control. The Tenth Circuit held that the plea agreement did not require the government to allow defendant to provide substantial assistance. The government did not obligate itself to move for a § 5K1.1 departure. The language of the plea agreement merely left this possibility open, expressly leaving the decision to the sole discretion of the government. The government decided to terminate the drug investigation, rendering defendant’s cooperation unnecessary. Defendant did not allege that the government terminated the investigation for improper reasons. U.S. v. Courtois, 131 F.3d 937 (10th Cir. 1997).
10th Circuit finds no breach of sentencing agreement. (790) Defendant contended that the government breached his sentencing agreement by (1) dismissing 8 unresolved counts without prejudice at sentencing, and (2) including reference to these counts in the PSR. The Tenth Circuit found no breach. Given the express reservation regarding reinstatement of dismissed charges pending the outcome of defendant’s appeal, a dismissal with prejudi The PSR’s reference to the dismissed counts did not violate the agreement. The government specifically reserved the right to include in the PSR any information it deemed useful. U.S. v. Furman, 112 F.3d 435 (10th Cir. 1997).
10th Circuit lacks jurisdiction to review failure to move for § 5K1.1 departure. (790) Defendant argued that the government violated his plea agreement and acted in bad faith in refusing to move for a § 5K1.1 departure. The Tenth Circuit held that it lacked jurisdiction over the claim. The plea agreement provided that the decision whether to file a substantial assistance motion resided within the “sole and exclusive discretion” of the prosecutor. Defendant did not allege that the government had an unconstitutional motive for its refusal to file the motion. U.S. v. Hawley, 93 F.3d 682 (10th Cir. 1996).
10th Circuit finds government breached promise not to oppose acceptance credit. (790) In the plea agreement, the government promised not to oppose an acceptance of responsibility reduction. However, at sentencing, the government said it was not aware of any evidence that this was an “extraordinary case” allowing for both a § 3C1.1 obstruction enhancement and a § 3E1.1 reduction for acceptance of responsibility. The Tenth Circuit held that the government’s comments violated the plea agreement. The prosecutor’s comments were a thinly disguised effort to persuade the court in a way that the government had promised it would not do. The government was not responding to “inaccurate information,” but was characterizing the facts and arguing a conclusion to the sentencing judge. U.S. v. Hawley, 93 F.3d 682 (10th Cir. 1996).
10th Circuit holds that government breached promise to recommend probation. (790) The government originally charged defendant with theft of government property valued at $300,000. Because it was unable to sufficiently prove the $300,000 value, it filed a superseding indictment charging in excess of $100. The parties then entered a plea agreement that provided that the government would recommend probation and that relevant conduct began February 1, 1990. At sentencing, the government presented evidence of loss before February 1, 1990, and argued that the loss was $301,000. This resulted in a sentencing range of 15-21 months. The government acknowledged its promise to recommend probation, but said the court was not bound to impose a sentence that was illegal under the guidelines. The Tenth Circuit held that the government breached its promise to recommend probation. Even if the government had an ethical duty to disclose evidence of the $301,000 loss, it was aware of this information when it signed the plea agreement, and it could not in good faith enter an agreement that it could not, consistent with its ethical duties, fulfill. Since the plea agreement was based on an unfulfillable promise, the only adequate remedy was to allow defendant to withdraw his guilty plea. U.S. v. Cooper, 70 F.3d 563 (10th Cir. 1995).
10th Circuit says that approval of midpoint sentence did not violate agreement not to oppose low sentence. (790) The government agreed as part of defendant’s plea agreement not to oppose a sentence at the lower end of the applicable guideline range. When the court announced a tentative sentence in the middle of the guideline range, the government commented that the sentence was very reasonable given the conduct involved. The Tenth Circuit held that the government’s comment did not violate its agreement not to oppose a low guideline sentence. This was not a case where the government promised not to make a recommendation concerning sentencing, and then made one. At most, the government made a “very equivocal” recommendation by commenting on the court’s sentence, but at no time did it oppose a sentence at the lower end of the range. U.S. v. Dudley, 62 F.3d 1275 (10th Cir. 1995).
10th Circuit finds no plea breach where recommendation was conditioned on criminal history. (790) Defendant’s plea agreement stated that his criminal history was Category IV, based on the information known to the government at the time, with a guideline range of 140-175 months. The government agreed to file a § 5K1.1 motion and recommend a 121-month sentence. However, defendant’s criminal history was actually VI and he was a career offender, resulting in a 262-327 month guideline range. In its § 5K1.1 motion, the government moved for a 19-54 month departure, rather than a 121-month sentence. The Tenth Circuit held that the government did not breach the plea agreement. The government’s recommendation of a 121-month sentence was clearly conditional on defendant’s criminal history. When his criminal history was later revealed to be substantially different, the government was not obligated to recommend a 121-month sentence. U.S. v. Robertson, 45 F.3d 1423 (10th Cir. 1995).
10th Circuit holds court satisfied Rule 11 by allowing defendant to withdraw plea. (790) Defendant argued that the district court violated Fed. R. Crim. P. 11(e)(4) by failing to advise him, before accepting his guilty plea, that the court was not going to adopt the sentence in the plea agreement. The 10th Circuit held that the judge satisfied Rule 11 by advising the parties of the court’s rejection of the plea agreement and granting defendant’s request to withdraw the plea. After defendant was convicted by a jury, the court was not required to sentence defendant in accordance with the plea agreement. The court had rejected the agreement, and a defendant has no absolute right to have his plea agreement accepted. U.S. v. Barber, 39 F.3d 285 (10th Cir. 1994).
10th Circuit finds judge did not retaliate against defendant for withdrawing plea. (790) Defendant originally pled guilty. However, when the court imposed a sentence greater than the sentence contained in his plea agreement, defendant withdrew his plea. After a jury conviction, the judge sentenced defendant to a harsher sentence than was originally imposed after the guilty plea. The 10th Circuit rejected defendant’s claim that the judge retaliated against him for withdrawing his guilty plea. The record showed that the post-trial sentence was more severe than the sentence entered after the plea because the court initially gave defendant a two point reduction for acceptance of responsibility. After defendant withdrew his plea, the judge determined that defendant had not accepted responsibility for his crime. U.S. v. Barber, 39 F.3d 285 (10th Cir. 1994).
10th Circuit holds that failure to advise defendant that he could not withdraw plea was harmless. (790) At defendant’s change of plea hearing, the district court failed to advise him that if the court did not accept the recommendations in the plea agreement, defendant had no right to withdraw his guilty plea. The 10th Circuit held that this failure to comply with Fed. R. Crim. P. 11(e)(2) was harmless error. Defendant understood the contents of the plea agreement and knew that the court was not bound by anything contained in it. The plea agreement neither guaranteed nor mentioned a specific length of sentence. Defendant did not allege that he would not have pled guilty if the court had given the proper warning. Moreover, because defendant did not move to withdraw his plea at any time, even though the district court indicated it might have allowed a withdrawal after the appointment of replacement counsel, he failed to show that he would not have pled guilty if he had received the proper Rule 11 warning. U.S. v. Vaughn, 7 F.3d 1533 (10th Cir. 1993).
10th Circuit says counsel’s failure to predict inclusion of relevant conduct was not ineffective assistance. (790) The 10th Circuit held that defendant failed to show that counsel’s failure to predict that relevant conduct would be included in his offense level calculation was ineffective assistance entitling him to withdraw his guilty plea. A miscalculation or erroneous sentence estimation by defense counsel is not a constitutionally deficient performance rising to the level of ineffective assistance. Moreover, defendant failed to establish prejudice, given he pled guilty after being informed by the court that such conduct could be considered. U.S. v. Gordon, 4 F.3d 1567 (10th Cir. 1993).
10th Circuit finds plea agreement did not obligate government to move for substantial assistance departure. (790) The 10th Circuit held that defendant’s plea agreement did not require the government to move for a §5K1.1 substantial assistance departure. In a letter to defendant after his arrest, the government stated that if the U.S. Attorney’s office determined that he had provided substantial assistance, it would give “serious consideration” to filing such a motion. However, a subsequent letter advised defense counsel that defendant’s ability to assist had been compromised by defendant’s disclosure of his arrest to his wife and nephew. The plea agreement subsequently executed stated only that the extent of defendant’s cooperation would be made known to the court. The agreement stipulated that it superseded any and all other agreements. At the plea hearing, defendant denied that anyone had made any other promises to him. U.S. v. Massey, 997 F.2d 823 (10th Cir. 1993).
10th Circuit holds that evidence of obstruction did not violate plea agreement. (790) In a motion under 28 U.S.C. section 2255, defendant argued that the government violated the plea agreement by supporting the probation department’s recommendation for an obstruction of justice adjustment. The plea agreement provided that neither party would move for an upward or downward departure. The 10th Circuit affirmed the district court’s dismissal of the section 2255 motion. Defendant’s failure to address this issue in his direct appeal barred review unless he could show cause and resulting prejudice. To satisfy this standard, defendant must not only show that his counsel was ineffective, but that there was a reasonable probability that but for the error, he would have prevailed. Defendant could not meet that standard. The plea agreement prohibited the government from moving for an upward departure; in contrast, the evidence presented at sentencing related to an upward adjustment. There is a distinction between “departures” and “adjustments.” U.S. v. Walling, 982 F.2d 447 (10th Cir. 1992).
10th Circuit rules that enhancement of defendant’s sentence did not violate plea agreement. (790) Defendant’s plea agreement provided that in return for his plea to being a felon in possession of a firearm, the government would dismiss another firearm charge, and would not recommend a departure. The plea petition represented that the maximum sentence would be 10 years, but made clear that a probation officer would conduct a presentence investigation. After reviewing the presentence report, the government realized that defendant’s three prior violent felonies triggered the penalty enhancement in section 924(e)(1) and brought the statute to the probation officer’s attention. The district court then informed defendant of the minimum 15-year term and allowed him to withdraw his plea. Defendant chose to stand by his plea and argued that the enhancement violated the plea agreement. The 10th Circuit rejected this claim. The government did not bargain away the enhancement or agree not to inform the district court of its applicability. U.S. v. Johnson, 973 F.2d 857 (10th Cir. 1992).
10th Circuit rules defendant did not show a fair and just reason for withdrawing his plea. (790) The 10th Circuit held that defendant did not present a fair and just reason for withdrawing his guilty plea. There was a factual basis for the plea. Contrary to defendant’s assertion that his participation in the conspiracy terminated December 1988, the district court specifically found that he continued his participation and ownership in various entities and property which were obtained with money illegally defrauded from another corporation. Defendant was not misled as to which sentencing guideline would apply and the maximum sentence which he could receive. Defendant was informed of and clearly comprehended both the nature and consequences of his plea. His 12-year sentence was well within the maximum of five years for each count, or 25 years. The government did not breach the plea agreement by requesting restitution. Government agencies such as the FDIC and RTC qualify as victims under the Victim and Witness Protection Act of 1982. U.S. v. Burger, 964 F.2d 1065 (10th Cir. 1992).
10th Circuit rules that court lacked authority to make substantial assistance departure where government did not make motion. (790) The 10th Circuit rejected defendant’s claim that he should have received a downward departure based upon his substantial assistance, since the government did not make a motion under section 5K1.1. Lack of such a motion is a jurisdictional bar to a downward departure under section 5K1.1. This was not an egregious case where the prosecution stubbornly refused to file a motion despite overwhelming evidence that the accused’s assistance was substantial. There was no merit to defendant’s claim that the government agreed to make such a motion as part of its plea negotiations. The government denied making such an agreement, and defendant’s plea agreement did not bind the government to make such a motion. Defendant agreed at his plea hearing that the plea agreement was the only agreement between him and the government, and could not now claim that there was an undisclosed oral agreement between them. U.S. v. Gines, 964 F.2d 972 (10th Cir. 1992).
10th Circuit rules that statement of drug quantity in plea agreement was not sentencing recommendation. (790) Under Fed. R. Crim. P. 11(e)(1)(B), the government may make a sentencing recommendation or agree not to oppose defendant’s request for a particular sentence. Defendant’s plea agreement specified that he possessed 11.2 grams of cocaine, but it did not contain a sentencing recommendation by the government or an agreement by the government not to oppose defendant’s request for a particular sentence. The 10th Circuit ruled that defendant’s agreement was not a Rule 11(e)(1)(B) agreement. Therefore, the district court was not required, pursuant to guideline section 6B1.1(b), to advise defendant prior to accepting his guilty plea that the court was not bound to accept the government’s sentencing recommendation. U.S. v. Jackson, 950 F.2d 633 (10th Cir. 1991).
10th Circuit rules failure to advise defendant of supervised release was harmless error. (790) The 10th Circuit upheld defendant’s sentence despite the district court’s failure to advise defendant that his sentence would include a period of supervised release as required by Rule 11. Defendant did not argue that he would not have pled guilty had the court advised him of the supervised release. The court did advise defendant that the maximum penalty for his offense was five years’ imprisonment, plus fines and fees. Defendant received a sentence of 14-months imprisonment and three years supervised release. Thus, the total sentence was a fraction of the maximum stated by the district court, and defendant’s substantial rights were not affected. The court rejected the suggestion that a possible future violation of supervised release might affect the harmless error analysis. U.S. v. Elias, 937 F.2d 1514 (10th Cir. 1991).
10th Circuit finds no breach of plea agreement in government’s disclosures and “unenthusiastic” sentence recommendation. (790) After entering into a plea agreement, defendant was involved in disseminating confidential grand jury material and intimidating a witness. Defendant contended that although the government literally complied with the plea agreement in recommending a seven-year sentence, the government effectively breached the plea agreement by furnishing a written report of defendant’s activities and by commenting during sentencing about the defendant’s disclosure of the material. The 10th Circuit rejected this argument, finding that the plea agreement could not be interpreted as prohibiting the government from informing the court of relevant conduct of this nature. The prosecutor had an ethical obligation to disclose such information. Moreover, “although the government attorney undeniably demonstrated a clear lack of enthusiasm for the recommended sentence, an unenthusiastic recommendation is still a recommendation.” U.S. v. Jimenez, 928 F.2d 356 (10th Cir. 1991).
10th Circuit finds no breach of plea agreement in government failure to move for downward departure. (790) The 10th Circuit rejected defendant’s argument that the government breached her plea agreement by not recommending a downward departure. The government promised only to dismiss one count in exchange for defendant’s information and future testimony. The government retained absolute discretion to determine whether defendant’s cooperation merited a downward departure under § 5K1.1. Defendant was unable to participate in a controlled buy, because the district court denied a joint motion to release her from custody. “It was not unreasonable for the government to conclude that, in the absence of the controlled buy, defendant’s cooperation did not amount to substantial assistance.” Although the government admitted that it was aware that the district court did not favorably view using defendants in undercover situations, there was no evidence that the government acted in bad faith. The district court had no authority to depart in the absence of a government motion. U.S. v. Vargas, 925 F.2d 1260 (10th Cir. 1991).
10th Circuit finds that attorney’s incorrect estimate of guideline range did not render plea involuntary. (790) Defendant’s counsel and the prosecutor calculated defendant’s applicable guideline range as 57 to 71 months, based on their determination that defendant fell within criminal history category II. The prosecutor agreed to recommend a 60 month sentence. The district court then accepted an unconditional plea after determining that defendant was aware that it was not bound by the plea agreement or the government’s 60 month sentence recommendation. The probation department found that defendant fell within criminal history category III, and thus had an applicable guideline range of 63 to 78 months. Defendant was sentenced to 78 months. The 10th Circuit rejected defendant’s claim that his plea was involuntary because he believed his sentencing range would be between 57 and 71 months. The plea was voluntary because it was made with the knowledge that the sentencing recommendation was nonbinding. U.S. v. Williams, 919 F.2d 1451 (10th Cir. 1990).
10th Circuit holds defendant need not be advised of guidelines, even under prior version of Fed. R. Crim. P. 11(c)(1). (790) The 10th Circuit rejected defendant’s argument that the district court violated Fed. R. Crim. P. 11(c)(1) by failing to advise him that the sentencing guidelines would determine the range of his sentence, and that the range would be related to the quantity of marijuana involved in his offense. At the time defendant was sentenced, Rule 11(c)(1) required the sentencing court to inform a defendant of any mandatory minimum penalty and the maximum possible penalty provided by law. It did not require the court to discuss the guidelines. The court’s failure to inform defendant that the guidelines would apply was not the “functional equivalent” of a failure to inform him of a statutory minimum sentence. U.S. v. Gomez-Cuevas, 917 F.2d 1521 (10th Cir. 1990).
10th Circuit holds that attorney’s miscalculation of sentence did not make plea involuntary. (790) Defendant’s counsel, based upon defendant’s misrepresentation of his criminal history, incorrectly advised defendant that he would not receive a sentence in excess of five years. Defendant’s motion to withdraw his plea was denied, and defendant was sentenced to 210 months of imprisonment. The 10th Circuit rejected defendant’s argument that the attorney’s miscalculation of his likely sentence, and the court’s failure to apprise defendant of the anticipated guideline range, rendered his plea involuntary. Defendant was properly advised of the statutory minimum and maximum penalties for his offense. The court was not required to inform defendant of the applicable sentencing guideline range prior to accepting the guilty plea. The fact that the applicable guidelines range was so much higher than defendant’s attorney estimated did not render defendant’s plea involuntary. Defendant was unable to show a “fair and just reason” for withdrawal of his plea. U.S. v. Rhodes, 913 F.2d 839 (10th Cir. 1990).
10th Circuit finds that consideration of drugs that defendant admitted possessing did not violate plea agreement. (790) At the time a government agent purchased one ounce of cocaine from defendant, the agent noticed additional amounts of cocaine in defendant’s car. Defendant advised the agent that he had purchased one pound of cocaine, and that the ounce being sold to the agent was “off the block.” Defendant objected to the inclusion of the one pound in computing the quantity of drugs attributable to defendant. The 10th Circuit rejected defendant’s argument that the district court could only consider the drugs specified in the indictment, or actually seized, tested, analyzed, seen or handled by government witnesses. The 10th Circuit also found that the inclusion of the pound did not violate defendant’s plea agreement, which stated that information given by the defendant “subsequent to and in response to this agreement” would not be used against defendant. Since defendant’s statement was made prior to the plea agreement, the plea agreement was not applicable. U.S. v. Valle-Sanchez, 912 F.2d 424 (10th Cir. 1990).
10th Circuit finds that use of codefendants’ statements did not breach plea agreement or violate Confrontation Clause. (790) Defendant and the government stipulated that defendant distributed 10 ounces of cocaine. Defendant and his each of his two codefendants later revealed to the probation officer that a significantly larger quantity of cocaine was involved. Defendant’s plea agreement specified that nothing defendant told the government would be used against him. The sentencing judge found that 36 ounces were involved, an amount within the range mentioned by the codefendants and only a small fraction of the quantity disclosed by the defendant. The 10th Circuit found that the use of codefendants’ statements to determine the actual quantity of cocaine involved did not breach defendant’s plea agreement. There was no indication that the codefendants’ statements were elicited as a result of defendant’s plea agreement, and there was no evidence that if defendant had refused to cooperate, his codefendants would have refused to provide information about the correct quantity of drugs involved. The 10th Circuit also rejected defendant’s argument that the use of his codefendants’ statements violated the Confrontation Clause. Defendant was given the opportunity to object to the judge’s determination of the quantity of cocaine involved, and declined to do so. U.S. v. Davis, 912 F.2d 1210 (10th Cir. 1990).
10th Circuit finds that use of codefendants’ statements did not breach plea agreement or violate Confrontation Clause. (790) Defendant and the government stipulated that defendant distributed 10 ounces of cocaine. Defendant and his each of his two codefendants later revealed to the probation officer that a significantly larger quantity of cocaine was involved. Defendant’s plea agreement specified that nothing defendant told the government would be used against him. The sentencing judge found that 36 ounces were involved, an amount within the range mentioned by the codefendants and only a small fraction of the quantity disclosed by the defendant. The 10th Circuit found that the use of codefendants’ statements to determine the actual quantity of cocaine involved did not breach defendant’s plea agreement. There was no indication that the codefendants’ statements were elicited as a result of defendant’s plea agreement, and there was no evidence that if defendant had refused to cooperate, his codefendants would have refused to provide information about the correct quantity of drugs involved. The 10th Circuit also rejected defendant’s argument that the use of his codefendants’ statements violated the Confrontation Clause. Defendant was given the opportunity to object to the judge’s determination of the quantity of cocaine involved, and declined to do so. U.S. v. Davis, 912 F.2d 1210 (10th Cir. 1990).
10th Circuit finds that government is not bound by plea agreement induced by defendant’s lies. (790) Defendant argued that the government violated his plea agreement by failing to move for a downward departure based on defendant’s substantial assistance to the government. The 10th Circuit found that defendant had misrepresented to the government prior to the first plea bargain that a third party was involved in the crime. Since the plea agreement had been entered into under fraudulent circumstances, the government was not bound by its terms. U.S. v. Mesa-Rincon, 911 F.2d 1433 (10th Cir. 1990).
10th Circuit uses uncharged conduct to determine that defendant engaged in criminal conduct as a livelihood. (790) Defendant entered into plea agreement under which the government agreed not to bring any further charges based on acts committed prior to December 31, 1988. Defendant argued it constituted “further charges” for the government to advise the court at his sentencing hearing that defendant had committed the same crime almost 100 times during a seven-to-eight month period prior to prosecution. The 10th Circuit found that this did not violate the plea agreement, and that it was proper for the district court to use this information to determine that defendant was engaged in a pattern of criminal conduct from which he made his livelihood. The 10th Circuit also found that such seven-to-eight month period constituted “a substantial period of time.” U.S. v. Salazar, 909 F.2d 1442 (10th Cir. 1990).
10th Circuit holds that failure to advise of mandatory period of supervised release was harmless error. (790) The 10th Circuit ruled that in taking a guilty plea under Rule 11, Fed. R. Crim. P., the district court must inform the defendant that, if sentenced to prison, he would be subject to a mandatory term of supervised release. The court erred in failing to do so here, but the 10th Circuit found the error harmless. Defendant was advised that the maximum penalty was 40 years, that parole had been abolished and that he would be sentenced under the guidelines. Since his total sentence — including the term of supervised release — was only a fraction of the maximum penalty, the failure to advise him “could not have had a significant influence on appellant’s decision to plead guilty.” U.S. v. Barry, 895 F.2d 702 (10th Cir. 1990).
11th Circuit upholds 15-year sentence despite erroneous advice that maximum penalty was 10 years. (790) Defendant was sentenced as an armed career criminal. He argued that the district court erred by sentencing him to the mandatory minimum 15 years, since he was erroneously advised by the prosecutor and the magistrate judge that the maximum penalty for his offense was 10 years in prison. The Eleventh Circuit ruled that the court did not commit plain error by sentencing defendant to 15 years. At sentencing, the district court noted that defendant had entered his plea based on these representations. It thoroughly explained that this was an error, and that the mandatory minimum sentence under the ACCA would be 15 years. The district court asked defendant if he had any questions, and then asked if he would like to enter into the same guilty plea at that time. The court even offered to take a break in the proceedings to permit defendant and his attorney to discuss the matter, but defendant stated that he had already spoken with his attorney about the matter and that he did not wish to withdraw his guilty plea. Thus, the error was harmless and did not affect defendant’s substantial rights. U.S. v. Gandy, 710 F.3d 1234 (11th Cir. 2013).
11th Circuit finds government’s breach of plea agreement was not plain error. (790) Defendant was hired to travel from to Huatulco, Mexico, to repair boat engines. Once defendant arrived at the vessel, it was clear to him that the vessel was a “go-fast” vessel used for drug smuggling. Nonetheless, he repaired the vessel, acted as a crew member on the vessel when it provided support to another go-fast vehicle carrying cocaine, and accepted the load of cocaine when the other boat broke down. He pled guilty to drug conspiracy charges. At sentencing, defendant testified that he did not know that the work in Huatulco involved drugs until he arrived, that he did not know he would be a crew member until he finished the repairs, and that the lead drug smuggler coerced him to work on the go-fast vessel. The government questioned the credibility of defendant’s testimony. Defendant argued that the government breached his plea agreement by arguing that his sentencing testimony was not credible. The Eleventh Circuit agreed. Under the stipulated facts, defendant did not learn of the nature of his work until he arrived in Huatulco, and the smugglers did not instruct him to be a crew member until he completed the repairs. Thus, the government breached the plea agreement by challenging defendant’s credibility on these points. However, defendant did not show plain error. Despite the challenge to defendant’s credibility, the district court credited his testimony, but nonetheless found no reason to reduce defendant’s guideline range or grant a downward departure. U.S. v. De La Garza, 516 F.3d 1266 (11th Cir. 2008).
11th Circuit holds that appeal waiver exception did not permit defendant to raise Blakely/Booker claim. (790) As part of her plea agreement, defendant waived the right to appeal her sentence “unless the sentence exceeds the maximum permitted by statute.” She contended that the “maximum permitted by statute” was the same as the “statutory maximum” referred to in the Apprendi, Blakely and Booker decisions, and therefore, the appeal waiver did not bar her from raising a sentencing issue under Booker. The Eleventh Circuit disagreed. In the Apprendi line of cases, the Supreme Court used the term “statutory maximum” to describe the parameters of the rule announced in those decisions, a rule that had nothing to do with the scope of appeal waivers. Plea bargains are like contracts and should be interpreted in accord with what the parties intended. There was nothing to indicate that when the parties used the language “exceeds the maximum permitted by statute” that they intended those words to have anything other than their usual and ordinary meaning. The parties chose to define the maximum in sentence in terms of what is “permitted by statute,” not in terms of what is permitted by the Apprendi line of cases. The D.C. Circuit reached a similar result in U.S. v. West, 392 F.3d 450 (D.C. Cir. 2004). U.S. v. Rubbo, 396 F.3d 1330 (11th Cir. 2005).
11th Circuit holds that prosecutor’s breach of plea agreement met plain error test. (790) Pursuant to a plea agreement, defendant pled guilty to being a felon in possession of a firearm, and the court dismissed a count of possession of a destructive device. The probation officer recommended two enhancements which the parties had not contemplated in the plea agreement because they related to the dismissed count. At sentencing, the prosecutor acknowledged that, in negotiating the plea agreement, the parties had not contemplated that defendant’s base offense level would be enhanced for conduct that related to the dismissed count, but nonetheless urged the court to apply the two guideline enhancements, and the court did so. On appeal defendant argued, and the government conceded, that the prosecutor breached the plea agreement by urging the court to consider information wholly unrelated to the count of conviction. However, the government pointed out that defendant failed to raise this issue before the district court. The Eleventh Circuit found that the error was plain, that the use of the higher guideline range affected defendant’s substantial rights, and seriously affected the fairness, integrity, or public reputation of the judicial proceedings. Therefore, it vacated and remanded for further proceedings. U.S. v. Romano, 314 F.3d 1279 (11th Cir. 2002).
11th Circuit holds that failure to advise of restitution did not violate substantial rights. (790) The district court violated Fed. R. Crim. P. 11 by ordering restitution after failing to advise him before he pled guilty of the possibility that restitution might be ordered. The Eleventh Circuit held that the error did not violate defendant’s substantial rights. Both the plea agreement and the plea colloquy informed defendant that he faced a maximum fine of $250,000 on the fraud conspiracy count, and a fine of the greater of $500,000 or twice the value of the transaction on the money laundering count. The panel agreed with seven of the eight circuits to have ruled on this question that a defendant “is not prejudiced so long as his liability does not exceed the maximum amount that the court informed him could be imposed as a fine. It is the amount of liability, rather than the label ‘restitution,’ that affects [a defendant’s] substantial rights.” U.S. v. Glinsey, 209 F.3d 386 (5th Cir. 2000). U.S. v. Morris, 286 F.3d 1291 (11th Cir. 2002).
11th Circuit holds that plea agreement and magistrate advised defendant of mandatory minimum. (790) Defendant argued that the magistrate judge failed to comply with Rule 11(c) at the plea colloquy by not informing her about an applicable mandatory minimum sentence. The Eleventh Circuit disagreed. The written plea agreement explicitly provided that the charge “carrie[d] a maximum sentence of a minimum mandatory 20 years’ imprisonment up to life imprisonment.” At the plea colloquy, the magistrate judge also twice stated that “the maximum penalty if you are convicted of count two of the superceding indictment is a mandatory minimum 20 years’ imprisonment….” Defendant was adequately informed of the minimum 20-year term of imprisonment through the provision in the plea agreement and the magistrate’s recitation of the plea agreement during the plea colloquy. U.S. v. Clark, 274 F.3d 1325 (11th Cir. 2001).
11th Circuit holds that guilty pleas were not invalid under Apprendi. (790) Defendants argued that their convictions must be reversed because their guilty pleas were unintelligent and involuntary under Apprendi v. New Jersey, 530 U.S. 466 (2000). They contended that the district court did not comply with Rule 11 before accepting their guilty pleas because it did not address drug quantity, which they believed Apprendi converted into an element of their offense. Moreover, they contended that their guilty pleas were induced by the threat of a harsher punishment (up to 40 years’ imprisonment under § 841(b)(1)(B)) than was possible under Apprendi, which limited their maximum penalty to 20 years under § 841(b)(1)(C). The Eleventh Circuit rejected both claims. Because defendants were sentenced below the prescribed maximum penalty otherwise permissible under § 841(b) (1)(C), a specific drug quantity was not an element of their drug offense. Therefore, the court’s failure to discuss specific drug quantity in their plea colloquies was not error. Moreover, even assuming defendants were misadvised about the “maximum possible penalty” they faced, their challenge to their plea colloquies lacked merit due to Brady v. U.S., 397 U.S. 742 (1970). The Supreme Court in Brady expressly held that a guilty plea was not rendered involuntary by a subsequent legal pronouncement that reduced the statutory maximum sentence below what the defendant was advised of at the time of his plea. U.S. v. Sanchez, 269 F.3d 1250 (11th Cir. 2001), abrogation recognized by U.S. v. Duncan, 400 F.3d 1297 (11th Cir. 2005).
11th Circuit rules substantial rights not affected by failure to mention mandatory supervised release term. (790) At defendant’s plea colloquy, the district court advised defendant of the maximum and minimum term of imprisonment, but failed to inform defendant that there was a mandatory minimum term of supervised release of five years. At sentencing, defendant did not object to the five-year supervised release period. The Eleventh Circuit held that the court’s failure to inform him of the mandatory minimum supervised release term was not plain error because defendant’s substantial rights were not affected. Both the written plea agreement and the district court’s statement during the plea colloquy informed defendant that he could receive a sentence up to life imprisonment, and there was a mandatory minimum sentence of 10 years’ imprisonment, and that his sentence would include a period of supervised release. Further, defendant’s PSR stated that a five-year period of supervised release was required by statute, and defendant failed to object to the PSR at sentencing. Thus, defendant’s conduct indicated that his substantial rights were not affected by the court’s failure to inform him at his plea colloquy of the specific term of supervised release required by statute. U.S. v. Bejarano, 249 F.3d 1304 (11th Cir. 2001).
11th Circuit says reliance on client’s representation of his own criminal history was not deficient. (790) Rather than running a criminal records check, counsel relied on defendant’s representations, and thus failed to uncover several of defendant’s prior convictions. Defendant moved to withdraw his guilty plea, claiming his counsel was ineffective in failing to properly advise him of the severity of the sentence he faced. The Eleventh Circuit found that while the limited scope of defense counsel’s investigation was not “laudatory,” reliance on a client’s statements is not per se deficient performance. A determination of whether reliance on a client’s statement of his own criminal history constitutes deficient performance depends on the peculiar facts and circumstances of each case. Here, the district court did not err in determining that defendant did not establish ineffective assistance. U.S. v. Pease, 240 F.3d 938 (11th Cir. 2001).
11th Circuit holds that incorrect statement of maximum sentence did not affect substantial rights. (790) Under Federal Rule of Criminal Procedure 11(c)(1), before accepting a guilty plea, the district court must address the defendant personally in open court and inform him of any mandatory minimum and the maximum possible penalty he faces. Here, defendant was subject to a maximum penalty of 40 years; however, during the Rule 11 colloquy, the district court erroneously informed her that the maximum incarceration was 340 years. Defendant raised this Rule 11 error for the first time on appeal. Under the plain error review, a defendant must show that her substantial rights were impaired by the Rule 11 violation. The Eleventh Circuit held that defendant’s substantial rights were not impaired by the district court’s failure to properly advise her of the maximum possible penalty she faced. Defendant’s plea agreement clearly stated that defendant faced a maximum statutory sentence of 40 years’ incarceration. Defendant signed the plea agreement, agreeing that she had reviewed the contents with her attorney and understood it. She affirmed this fact at the plea hearing. The district court’s mistake, adding 300 years to the maximum, was clearly an inadvertent error and so far above any reasonable sentence that it could not be said to have likely confused defendant, particularly when the plea agreement contained the correct maximum sentence. U.S. v. Camacho, 233 F.3d 1308 (11th Cir. 2000).
11th Circuit holds that failure to advise that defendant could not withdraw plea was not plain error. (790) The district court failed to advise defendant during her Rule 11 colloquy that if the court declined to follow the sentencing recommendations in the plea agreement, she would not be able to withdraw her plea. The Eleventh Circuit ruled that the district court’s error did not affect defendant’s substantial rights and thus was not plain error. First, the district court advised defendant that it was not bound by the sentencing recommendations contained in the written agreement. Second, the plea agreement clearly stated that defendant would not be able to withdraw her plea in the event the court declined to follow the agreement’s sentencing recommendations. Defendant acknowledged to the court that she had reviewed the agreement with her attorney and understood its contents. Finally, the district court sentenced defendant in full accord with the agreement’s sentencing recommendations and pursuant to the government’s motion for a downward departure. Defendant never attempted to withdraw her plea, nor did she seek reconsideration of the sentence imposed against her. In short, she received the full benefit of the bargain she made with the government. U.S. v. Camacho, 233 F.3d 1308 (11th Cir. 2000).
11th Circuit holds that failure to advise of enhancement under § 3147 and § 2J1.7 was not plain error. (790) Defendant complained that he was not advised that his ten-year minimum sentence would be automatically enhanced under 18 U.S.C. § 3147 and USSG § 2J1.7 for committing the current offense while on bond in another matter. The Eleventh Circuit held that the failure to notify defendant of the effect of § 2J1.7 and § 3147 was not plain error. When a defendant is informed of a mandatory minimum and maximum statutory sentence and sentenced within that range, the failure to advise of a sentencing range is harmless error, as long as the defendant knew that the Sentencing Guidelines existed and would affect his sentence. U.S. v. Mosley, 173 F.3d 1318 (11th Cir. 1999). The district court here confirmed during the plea colloquy that defendant knew that the Sentencing Guidelines existed and would affect his sentence. Thus, the only question was whether defendant was informed of the mandatory minimum sentence. Although § 3147 is a sentence enhancement statute, it does not specify a minimum enhancement. It requires only that defendant be sentenced to an additional prison term of “not more than” ten years. Thus, a single additional day of imprisonment would comply with § 3147. Because the required enhancement was de minimus, the failure of the court to advise defendant of it was not material. U.S. v. Tyndale, 209 F.3d 1292 (11th Cir. 2000).
11th Circuit holds that alleged breach of plea agreement was not plain error. (790) Defendant claimed that the government breached her written plea agreement by failing to request a lower offense level based upon “super acceptance” of responsibility. However, prior to sentencing, the government learned that defendant had underhandedly transferred assets to her daughter. Further, defendant failed to object at trial; therefore she waived the issue unless she could show plain error. The Eleventh Circuit ruled that any breach of the plea agreement did not constitute plain error. U.S. v. Thayer, 204 F.3d 1352 (11th Cir. 2000).
11th Circuit upholds plea despite failure to advise of supervised release. (790) Defendant argued for the first time on appeal that his guilty plea was invalid under Rule 11(c)(1) because the district judge did not inform him of his potential range of supervised release under the Sentencing Guidelines. The Eleventh Circuit held that the judge did not clearly err in not advising defendant of his supervised release range. Rule 11(c)(1) requires the judge to determine that the defendant understands “the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law, including the effect of any special parole or supervised release term …” The judge elicited from defendant at the plea proceeding that he knew about the Sentencing Guidelines and that he had discussed the effect of the guidelines on his sentence with his attorney. Under the guidelines, that is all that is required. U.S. v. Mosley, 173 F.3d 1318 (11th Cir. 1999).
11th Circuit rules government did not breach plea agreement where defendant fled before sentencing. (790) Defendant pled guilty to drug charges. As part of a plea agreement, the government promised not to oppose his request for an acceptance of responsibility reduction or his request for safety valve protection. However, defendant then failed to appear at his original sentencing, and was sentenced only after he was arrested in Mexico and extradited to the U.S. Defendant made a full confession but then attempted to retract part of his admissions during the pre-sentence interview. The Eleventh Circuit held that the government did not breach the plea agreement by opposing defendant’s request for sentence reductions. The government’s promise was conditioned on defendant making a full and accurate disclosure to the probation office, which he did not do. He also fled the jurisdiction in violation of the agreement. The government’s promise not to oppose defendant’s request for safety valve protection was conditioned on him being eligible for the reduction. U.S. v. Mahique, 150 F.3d 1330 (11th Cir. 1998).
11th Circuit finds AUSA breached plea agreement by urging higher drug quantity. (790) Defendant’s plea agreement said: “The government represents that an amount of marijuana not greater than 100 pounds should be attributed to this defendant.” The government also agreed not to make a recommendation as to sentence. However, the PSR recommended that defendant be held accountable for 1400 pounds of marijuana. When the sentencing court inquired into the difference, the AUSA explained that a co-conspirator was not interviewed until the day after the plea agreement was made. The AUSA also said other things that further undermined the plea agreement. The Eleventh Circuit held that the government breached the plea agreement. The AUSA did more than just answer the sentencing court’s questions. He became, in essence, an advocate for the PSR’s numbers. When the defense attorney questioned the new witness’s credibility, the AUSA said he found the witness credible and believable, and that the drug quantities were corroborated by the testimony of other witnesses. These comments were not demanded from the AUSA by a zealous judge. Rather, the AUSA abandoned the agreement he made with defendant and became an advocate for a “fact” at odds with the “fact” to which he had stipulated. The case was remanded for resentencing by a different judge. U.S. v. Johnson, 132 F.3d 628 (11th Cir. 1998).
11th Circuit says bare allegation of bad faith is not sufficient to permit § 5K1.1 departure. (790) Defendant claimed that the government’s refusal to make a § 5K1.1 substantial assistance motion violated his plea agreement. The plea agreement required the government to exercise “good faith” in deciding whether defendant had provided substantial assistance. The Eleventh Circuit held that defendant’s bare allegation of bad faith was insufficient to require specific performance of the plea agreement. Defendant testified at his sentencing hearing that he assisted the government in four ways, three of which did not yield results and were therefore insubstantial. There was no evidence that the government’s failure to consider defendant’s assistance was in bad faith. In order to obtain an evidentiary hearing on his motion for specific performance, defendant must produce evidence of bad faith before the government has a duty to respond. Defendant was permitted to testify. Because he did not put forth sufficient evidence that he had substantially assisted, he was not entitled to be heard further. U.S. v. Gonsalves, 121 F.3d 1416 (11th Cir. 1997).
11th Circuit allows plea withdrawal for failure to advise of maximum and mandatory minimum sentences. (790) Defendant pled guilty to eight racketeering and firearms counts. He was told that he faced a maximum sentence of 20 years on counts 1‑3, but he was not told of the maximum sentences he faced on counts 4‑6. As for counts 8 and 9, although he was told he faced a five year sentence for the first § 924(c) conviction and a 20‑year sentence for the second § 924(c) conviction, he was not told that these were not merely maximum sentence, but mandatory minimums, and that they were to be served consecutively to the other sentence and to each other. The Eleventh Circuit held that defendant was entitled to withdraw his guilty pleas because the court failed to inform him of the maximum and mandatory minimum sentences. The court also vacated the sentences for counts 1‑3, since it is appropriate for an entire case to be remanded for resentencing when a sentence scheme has been disrupted because it has incorporated an illegal sentence. U.S. v. Siegel, 102 F.3d 477 (11th Cir. 1996).
11th Circuit relies on relevant conduct outside statute of limitations. (790) Defendant, an insurance agent, converted for his own use $12,000 given to him by a client to fund a pension fund. The district court included in the loss over $300,000 that the insurance company lost as a result of defendant’s other thefts, verbal misrepresentations and unauthorized withdrawals from client accounts. Defendant argued that these losses occurred outside the statute of limitations. The Eleventh Circuit held that a court may consider as relevant conduct all conduct that occurred outside the statute of limitations. The government has no duty to advise a defendant before he pleads guilty which relevant conduct the court will use to enhance his sentence. The relevant conduct is unknown to both the government and the defendant when the plea is entered, since the parole officer has not yet prepared a PSR. The government does not have a duty to disclose information it does not possess. U.S. v. Behr, 93 F.3d 764 (11th Cir. 1996).
11th Circuit permits plea withdrawal where agreement and advice were ambiguous. (790) Defendants pled guilty to violating 18 U.S.C. § 1954, which prohibits receiving or soliciting a bribe or a gratuity. The plea agreement inconsistently stated that defendants were pleading to accepting a gratuity with intent to influence, which generally connotes a bribe. The government agreed that the sentence under § 2E5.1 should be based on a gratuity, which carries a base offense level of 6, rather than on a bribe, which carries a base offense level of 10. The district court, however, sentenced them for bribery, and refused to allow them to withdraw their pleas. The Eleventh Circuit ruled that the court should have permitted defendants to withdraw their pleas if it could not, in good conscience, sentence them under the gratuity guideline. The plea agreement was somewhat ambiguous as to whether it was a type “C” agreement for a specific sentence, or a type “B” agreement, which would allow the court to accept or reject the recommended punishment. Moreover, although the district court told defendants they would be unable to withdraw because the agreement was not binding on the court, it also twice informed them that they would be able to withdraw their plea if the court did not accept the agreement U.S. v. Kummer, 89 F.3d 1536 (11th Cir. 1996).
11th Circuit sets aside guilty plea where judge improperly participated in plea negotiations. (790) At defendant’s plea change hearing, defendant’s attorney announced that defendant had changed his mind and did not wish to plead guilty. The judge then stated that defendant should “understand” that if he was tried on all three counts, he could receive a mandatory minimum of 15 years, while if he pled that day he would get a mandatory minimum of 10 years. The court then “suggested” that defendant talk to his lawyer to see if that was what he really wanted to do. Defendant conferred with his attorney and then pled guilty. The Eleventh Circuit set aside the guilty plea, finding that the district court improperly participated in the plea negotiations. Circuit precedent required reversal even though the comments were innocuous and intended only to insure that defendant was making an informed decision. The district court’s statements crossed the line into the realm of participation. The appellate court refused to evaluate the degree of judicial participation. U.S. v. Casallas, 59 F.3d 1173 (11th Cir. 1995).
11th Circuit holds that failure to advise defendant of sentencing guidelines was harmless error. (790) Defendant argued that the district judge’s failure to advise him of the existence of the sentencing guidelines during his plea change hearings was error that mandated reversal of his conviction. The Eleventh Circuit held that the failure to so advise defendant violated Rule 11(c)(1), but was harmless error. Rule 11(h) says that any variance from the procedures required by this rule which does not affect substantial rights shall be disregarded. This case presented such a situation: defendant was advised of the controlling statutory sentence, was sentenced within that range, and in fact knew that the sentencing guidelines existed. U.S. v. Casallas, 59 F.3d 1173 (11th Cir. 1995).
11th Circuit says failure to advise of loss of federal benefits did not merit plea withdrawal. (790) Defendant argued that his guilty plea was invalid because the district judge did not advise him, pursuant to Rule 11, that the sentencing judge could declare him ineligible for receipt of federal benefits. The 11th Circuit held that a potential loss of federal benefits for a temporary period of time is a collateral consequence of pleading guilty. Moreover, even if it were a direct consequence, the failure to advise defendant of this consequence would be harmless error. The presentence report, which defendant acknowledged reading and discussing with counsel, set out the statutory and guideline provisions allowing a sentencing judge to deny federal benefits. Moreover, defendant did not object to the provision at sentencing. U.S. v. Morse, 36 F.3d 1070 (11th Cir. 1994).
11th Circuit upholds refusal to depart below mandatory minimum absent government motion. (790) Defendant claimed that the government’s failure to move for a downward departure for substantial assistance under § 5K1.1 breached his plea agreement. The 11th Circuit upheld the sentence. First, the court had no authority to depart below the mandatory minimum absent a government motion. Judicial review is proper only when there is a substantial showing that the prosecution’s refusal is based on an unconstitutional motive. No such allegation was made here. The government’s failure to present evidence of the extent of defendant’s cooperation, as required by the plea agreement, was troubling. However, defendant’s dispute was over the government’s failure to make a § 5K1.1 motion, not its breach of this provision. Senior Judge Clark dissented, believing that the plea agreement obligated the district judge to examine defendant’s allegations of bad faith. U.S. v. Forney, 9 F.3d 1492 (11th Cir. 1993).
11th Circuit finds government breached plea agreement by telling probation officer about additional drugs. (790) In this pre-guidelines case, as part of defendant’s plea agreement, the government stipulated that two ounces of cocaine were the only quantity to be considered for sentencing purposes. Nonetheless, investigators revealed to the probation officer who wrote the presentence report that defendant was involved in over three kilograms of cocaine. The 11th Circuit held that this breached the stipulation as to the amount of cocaine. The government’s statement at sentencing that it would stick to its stipulation was undermined by its statement to the court that its later investigations had revealed defendant’s involvement with the larger quantity of cocaine. The court granted defendant’s request for specific performance, and directed the presentence report to refer only to two ounces of cocaine as stipulated. U.S. v. Boatner, 966 F.2d 1575 (11th Cir. 1992).
11th Circuit vacates sentence because defendant was not advised that he could not withdraw his guilty plea if the court rejected the government’s sentencing recommendation. (790) Defendant’s plea agreement contained certain sentencing recommendations, and stipulated that, while the court was not bound by the agreement, defendant would be given the opportunity to withdraw his guilty plea if the court rejected these sentencing recommendations. The district court accepted the plea agreement, and sentenced defendant in accordance with all but one of the government’s recommendations. The court then denied defendant’s motion to withdraw his plea and vacate the sentence. The 11th Circuit ruled that the court’s failure to advise defendant that he was not entitled to withdraw his guilty plea if the court rejected the government’s sentencing recommendations, as required by Fed. R. Crim. P. 11(e)(2), was not harmless error. The district court’s omission deprived defendant of the knowledge of the direct consequences of his plea, thus affecting his substantial rights under Rule 11. The sentence was vacated and defendant was granted the opportunity to plead anew. U.S. v. Zickert, 955 F.2d 665 (11th Cir. 1992).
11th Circuit remands forfeiture case for district court to determine whether use of claimant’s statements violated plea agreement. (790) Defendant’s plea agreement stated that defendant’s statements would not be used against him, either directly or indirectly. Defendant testified as a government witness that he and his partner bought several properties with the proceeds of illegal transactions, including certain property which was already the subject of a forfeiture proceeding. Following the trial, defendant was deposed in the forfeiture proceeding and again admitted that the property was purchased with drug proceeds. Over defendant’s objections, the deposition was admitted into evidence at the forfeiture trial. Defendant argued that the use of his deposition testimony violated the plea agreement. The 11th Circuit found that the plea agreement was ambiguous, and remanded the case to determine whether the plea agreement allowed defendant’s statements to be used against him in the forfeiture action. U.S. v. One Parcel of Real Estate at 136 Plantation Drive, 911 F.2d 1525 (11th Cir. 1990).
11th Circuit finds that imposition of $100,000 fine violated plea agreement. (790) Defendant’s plea agreement was silent with respect to imposing a fine. However, the original draft of the agreement explicitly left the issue of a fine to the discretion of the court, and this reference was deleted after the government orally agreed that no fine would be imposed. The district court subsequently imposed a $100,000 fine. The 11th Circuit found that, based on the intent of the parties, the plea agreement precluded the imposition of the fine. U.S. v. Jefferies, 908 F.2d 1520 (11th Cir. 1990).
11th Circuit upholds plea agreement despite mistaken belief that sentence would be based on weight rather than number of marijuana plants. (790) Both the defendant and the prosecuting attorney indicated that they had assumed when negotiating the plea agreement that defendant would be sentenced under level 6 based on weight, rather than level 14 based on the number of marijuana plants. But defendant admitted that the parties never negotiated or agreed to a particular offense level or sentence. The 11th Circuit upheld the plea agreement, ruling that to the extent that the defendant claimed his guilty plea was based on his attorney’s estimate of the sentence and offense level, the claim did not warrant withdrawal of the guilty plea because defendant acknowledged that he understood the possible maximum sentence. U.S. v. Bradley, 905 F.2d 359 (11th Cir. 1990).
11th Circuit finds no duty to advise defendant that his sentence may be adjusted for acceptance of responsibility. (790) Defendant argued that he was denied due process because neither the district court nor the probation officer informed him that his sentence might be favorably adjusted under the guidelines for his acceptance of responsibility. The 11th Circuit rejected the argument, ruling that the Constitution does not require the sentencing court or the probation department to inform a defendant of the “substantive aspects of the sentencing laws.” U.S. v. Simpson, 904 F.2d 607 (11th Cir. 1990).
11th Circuit holds validity of defendant’s plea not affected by Mistretta holding. (790) The plea agreement entered into between the defendant and the government had provided that he would be sentenced under prior law because the district court had found the guidelines unconstitutional. After the plea, but prior to sentencing, the Supreme Court upheld the guidelines in Mistretta v. U.S., 109 S.Ct. 647 (1989). Thus, when the defendant arrived for sentencing he was told that he would receive a guidelines sentence. The 11th Circuit held that this did not justify withdrawal of the plea. The defendant had not objected at the time of sentencing, and was aware that the pending Mistretta decision might result in a guidelines sentence. Thus, there was no evidence that the defendant would not have pled guilty if he knew the guidelines would apply. U.S. v. Carey, 884 F.2d 547 (11th Cir. 1989).
11th Circuit holds failure to advise defendant that guidelines mandated supervised release did not require that plea be set aside. (790) When taking the defendant’s plea, the district court failed to advise him of the mandatory supervised release provisions. However, the presentence report disclosed this information to him, as did the sentencing court. Given his failure to object, the 11th Circuit held that reversal was not required because the defendant’s substantial rights were not affected. U.S. v. Carey, 884 F.2d 547 (11th Cir. 1989).
11th Circuit holds defendant’s understanding of factors to be considered at sentencing precludes challenge. (790) Defendant pled guilty to one count of cocaine distribution and appealed her sentence, claiming that because she only pled guilty to possession of less than 500 grams, it was error for the district court to sentence her based upon the entire 2009 grams involved in the conspiracy. The 11th Circuit affirmed the sentence holding that because the record revealed that the defendant entered into the plea agreement with the awareness that she could be held responsible for the entire amount of cocaine, the calculation of the sentence was proper. U.S. v. Davis, 878 F.2d 1299 (11th Cir. 1989).
D.C. Circuit applies plain error standard of review to claim of breached plea bargain raised for first time on appeal. (790) Defendant argued for the first time on appeal that the government breached his plea agreement by failing to protect him and his family from harm while he cooperated in ongoing investigations, and by failing to advise the court of the extent of his cooperation. Rejecting defendant’s argument for de novo review of this issue, the D.C. Circuit joined the majority of circuits holding that when a defendant raises a claim of breached plea bargain for the first time on appeal, the reviewing court should apply a plain error standard of review consistent with Fed. R. Crim. P. 52(b). The fact-specific nature of an allegation of breach of plea agreement makes it “precisely the type of claim that a district court is best situated to resolve.” Defendant could not meet that standard here. In re Sealed Case, 356 F.3d 313 (D.C. Cir. 2004).
D.C. Circuit says defendant failed to show that but miscalculation of guideline range he would not have pleaded guilty. (790) Before sentencing, defendant moved to withdraw his plea on the ground that his counsel had miscalculated the proper sentencing range under the guidelines. The district court denied the motion, and the D.C. Circuit affirmed. Defendant failed to show that there was a reasonable probability that, but for his counsel’s error, he would not have pleaded guilty and would have instead on going to trial. First, the district court warned defendant at the plea hearing that defendant should not rely on sentencing predictions. Second, even if counsel had told defendant that the applicable range was 262-327 months if he had pled guilty, defendant would nonetheless have had reason to expect a sentence below that. Defendant anticipated providing substantial assistance to the government, which would have qualified him for a departure below both the guideline range and the statutory minimum sentence. Third, had defendant proceeded to trial and been convicted, his prior convictions would have dictated a mandatory life sentence. Finally, any competent attorney would also have advised defendant that he stood little chance of obtaining an acquittal at trial. U.S. v. Hanson, 339 F.3d 983 (D.C. Cir. 2003).
D.C. Circuit says government did not breach agreement where defendant provided partial cooperation. (790) Defendant entered into a boilerplate plea agreement in which the government promised that the Departure Guideline Committee would authorize a § 5K1.1 motion if it determined that defendant had provided substantial assistance to the prosecutor. Defendant aided authorities in the successful prosecution of one person, but refused at the eleventh hour to testify against two different persons in an unrelated prosecution. The Committee did not authorize the § 5K1.1 motion. The D.C. Circuit found no breach of the plea agreement. The government retained broad discretion under the agreement to decide what constitutes substantial assistance in a given case and whether defendant’s cooperation fit that bill. Although defendant contended that “the Government,” as a factual matter, found that his assistance in the first case was substantial, defendant conflated the prosecutor and the Departure Committee. While the prosecutor believed that defendant’s full assistance in the first case satisfied the substantial assistance requirement, defendant offered no evidence that the Departure Commission, the decision-maker under the agreement, found the assistance substantial. The boilerplate language did not explicitly make full cooperation a necessary condition to substantial assistance; however, this did not address whether such cooperation was required on the facts of defendant’s case. In re Sealed Case, 244 F.3d 961 (D.C. Cir. 2001).
D.C. Circuit rules defendant did not prove government breached agreement by leaking information to media. (790) Defendant, a police officer, was arrested for accepting bribes from a massage parlor acting as a brothel. While the case was under seal and defendant was secretly assisting the government in a sting operation, two televised news reports described defendant’s arrest. The sting operation was aborted. Defendant moved to withdraw his plea, claiming that the government had breached the plea agreement by leaking information to the media. The D.C. Circuit held that the plea agreement did not contain either an express or an implied promise of secrecy. Although it was clear that both defendant and the government desired to keep his plea and cooperation secret, these desires did not constitute implied promises. The agreement contained an integration clause that specifically stated that no other agreements or promises existed between the parties, and defendant reaffirmed this fact at the plea hearing. Defendant failed to carry his burden of proving that the government caused the leak and thus breached its obligation of good faith. All of the agents who had access to the information testified under oath or by affidavit that that they did not divulge anything about the case to the media. Defendant failed to present a single witness or any evidence to contradict these statements. Numerous people outside the prosecution team could have given information to the media. U.S. v. Ahn, 231 F.3d 26 (D.C. Cir. 2000).
D.C. Circuit says promise not to take a position did not bar government from advising court that witness was available. (790) The PSR alleged that defendant approached a witness and asked her to tell the FBI that defendant had returned the bribes that he had received. In the plea agreement, the government promised that it would not take a position on whether he should receive an obstruction of justice increase. At sentencing, defense counsel suggested that the court would have no evidence on which to base such an enhancement. The government informed the court that it could “make a case agent available to the Court should the Court want to hear that agent” testify. At the court’s request, the government then questioned the agent about the allegations in the PSR. Defendant argued that the government breached the plea agreement by taking a position of the obstruction increase. The D.C. Circuit disagreed. The government had a duty to provide relevant information about whether defendant obstructed justice, even though it had agreed not to take a stand on whether he should receive a sentence enhancement. The government acted appropriately in informing the court that a witness was available to recount the facts underlying the PSR. The prosecution did not violate the plea agreement by questioning the witness as instructed by the court. By limiting its questions to factual matters, the government merely facilitated the agent’s providing the court with relevant background on whether defendant obstructed justice. U.S. v. Ahn, 231 F.3d 26 (D.C. Cir. 2000).
D.C. Circuit finds no ineffective assistance where government complied with plea agreement. (790) Defendant argued that his trial counsel was ineffective in failing to seek enforcement of his plea agreement with the government, or at least seek an evidentiary hearing through which defendant could establish that the government’s refusal to file a § 5K1.1 motion was a breach. The D.C. Circuit found no ineffective assistance because the government fulfilled its obligations under the plea agreement. The agreement provided that the government would inform the Departure Committee in the U.S. Attorney’s office of the nature and extent of defendant’s cooperation, and that it would file a § 5K1.1 motion if the Departure Committee determined that defendant provided substantial assistance. The Assistant U.S. Attorney involved in defendant’s prosecution filed papers to apprise the Departure Committee of defendant’s progress, and the Committee declined to authorize a § 5K1.1 motion. Because the government complied with the terms of the plea agreement, no effort by defendant’s counsel could have obtained an order for specific performance. U.S. v. Burch, 156 F.3d 1315 (D.C. Cir. 1998).
D.C. Circuit holds government’s breach of plea agreement did not mandate resentencing before different judge. (790) The government breached defendant’s plea agreement by not requesting an acceptance of responsibility reduction. The D.C. Circuit held that Santobello v. New York, 404 U.S. 257 (1971) does not require resentencing before a different judge on remand. The principal factors to be considered by a court of appeals in determining whether to direct reassignment to a different judge are whether the original judge would be expected to have substantial difficulty in putting out of his mind the previous error, whether reassignment is advisable to preserve the appearance of justice, and whether reassignment would cause waste and duplication out of proportion to the gain. The factors here did not require resentencing. The remand was not caused by any error or misconduct on the part of the original trial judge. U.S. v. Wolff, 127 F.3d 84 (D.C.Cir. 1997).
D.C. Circuit holds government’s breach of plea agreement warranted reconsidering entire sentence. (790) Defendant’s plea agreement provided that the government would ask for an acceptance of responsibility reduction. Contrary to the plea bargain, the government requested that defendant be denied the reduction and be given an obstruction of justice enhancement. The PSR revealed that defendant had lied to authorities about his identity in order to conceal his extensive criminal record. On appeal, the government admitted its breach of the agreement, but argued that the other findings of the district court should be sustained and the case remanded solely to consider the effect of the breach. The D.C. Circuit held that the government’s breach of the plea agreement warranted remand to reconsider the entire sentence, not just the issue related to the breach. Defendant bargained for a sentencing proceeding in which the trial judge would consider the government’s recommendation for the § 3E1.1 reduction in conjunction with all other factors in the case, not just a proceeding in which all other factors are foreclosed. It might be that this factor would not change the trial court’s decision on any other subject, but that was best left to the trial court. U.S. v. Wolff, 127 F.3d 84 (D.C.Cir. 1997).
D.C. Circuit holds attorney’s advice of probable sentence was not ineffective assistance. (790) Defendant argued that he should have been permitted to withdraw his plea because he received ineffective assistance of counsel. He claimed his attorney did not spend enough time advising him of the consequences of pleading guilty and also incorrectly advised him that he faced 25 years in jail if convicted of all charges. The D.C. Circuit rejected this claim since defendant responded affirmatively when the district court asked him at the plea hearing whether he had adequate time and opportunity to discuss his case with his attorney. The 25-year estimate was not that far off the mark. The PSR stated that defendant’s conviction on all counts would have resulted in a sentencing range of 151-188 months. But if additional drugs that the government argued was relevant conduct were attributed to defendant, this would raised his guideline range to 235-293 months, close to what his attorney calculated. Moreover, the plea agreement gave defendant a sentence significantly lower than even the bottom of the range mentioned in the PSR. U.S. v. Holland, 117 F.3d 589 (D.C Cir. 1997).
D.C. Circuit remands where counsel incorrectly told defendant he was a career offender. (790) The government offered to let defendant plead guilty to a drug conspiracy, but he rejected the offer after defense counsel incorrectly advised him that he would qualify as a career offender with a sentencing range of 360 months to life. Under U.S. v. Price, 990 F.2d 1367 (D.C. Cir. 1993), decided a year before defendant was sentenced, a defendant convicted of conspiracy could not be sentenced as a career offender. After trial, defendant was convicted of all charges and the district court imposed a mandatory life sentence. He argued that if counsel had advised him correctly, he would have accepted the government’s offer and received a 15-20 year sentence. The D.C. Circuit remanded for an evidentiary hearing on whether defendant would have taken the government’s offer had he known his true exposure under the guidelines, and whether the government would have entertained an “unwired plea” from defendant. Defendant satisfied Strickland’s first prong because counsel’s advice under Price was plainly incorrect. However, it was unclear whether he satisfied the prejudice prong–i.e. whether there was a “reasonable probability” that he would have entered a guilty plea. Price is no longer good law because of later guideline amendments, but if defendant prevailed, he would be entitled to be sentenced under it. Sentencing him under the current law would violate the ex post facto clause. U.S. v. Gaviria, 116 F.3d 1498 (D.C. Cir. 1997).
D.C. Circuit holds government not obliged to make § 5K1.1 motion despite defendant’s full cooperation. (790) Defendant agreed to cooperate with the government as part of his plea agreement. In return, the government agreed that if its departure committee found that defendant’s cooperation was “substantial,” it would move for a § 5K1.1 departure. Although defendant cooperated fully, the departure committee failed to find that he had provided “substantial assistance.” The D.C. Circuit upheld the district court’s refusal to compel the government to make a § 5K1.1 motion. Under the plea agreement the departure committee retained complete discretion. Nonetheless, the court was troubled by the possibility that the government could use the promise of a § 5K1.1 motion to lure a defendant into a plea agreement, knowing that his cooperation could not possibly constitute substantial assistance. The court suggested that prosecutors summarize for the court the information they provided the departure committee, together with any explanation that the committee may have offered for finding the defendant’s assistance to be insubstantial. U.S. v. Jones, 58 F.3d 688 (D.C. Cir. 1995).
D.C. Circuit upholds sentence despite incorrect advice at plea hearing of maximum fine. (790) At defendant’s plea hearing, the district court incorrectly advised defendant that he faced a maximum fine of $250, when the maximum fine was actually $250,000. The court ultimately imposed a $135,000 fine. The D.C. Circuit upheld the sentence because defendant would not have refrained from pleading guilty had the court stated the fine correctly. Defendant either knew the correct maximum and was not misled by the court’s statement or did not consider the amount of the fine a serious factor in his decision to plead guilty. Defendant was accurately advised of the fine at his arraignment, and his PSR correctly stated the fine. Moreover, neither defendant nor his counsel expressed any surprise when a $150,000 penalty was discussed at the sentencing hearing, or when the judge actually imposed the $135,000 fine. U.S. v. Lyons, 53 F.3d 1321 (D.C. Cir. 1995).
D.C. Circuit rules plea agreement did not provide for judicial review of government’s substantial assistance determination. (790) Defendant’s plea agreement provided that if the Departure Committee determined that defendant provided substantial assistance, then the government would move for a downward departure. Determination of whether defendant provided substantial assistance was within the sole discretion of the government and was not reviewable by the Court. The plea agreement stated that the issue of whether defendant performed all of his obligations under the agreement would be determined by the Court. Nevertheless, the D.C. Circuit concluded that the plea agreement did not provide for judicial review of the government’s determination that defendant had not provided substantial assistance. U.S. v. Sparks, 20 F.3d 476 (D.C. Cir. 1994).
Indiana District Court holds miscalculation of guideline range by defendants’ attorneys prior to entry of guilty plea justifies withdrawal of plea in exceptional circumstances. (790) Defendants’ attorneys misapplied the relevant conduct section of the guidelines, thereby miscalculating the offense level. The district court held that the error justified withdrawal of two of the three guilty pleas. Two defendants’ actual ranges were well beyond their scope of expectancy at the time they entered their pleas, because their preliminary calculations were considerably lower. This event constituted an exceptional circumstance justifying withdrawal of their pleas. U.S. v. Bennett, 716 F.Supp. 1137 (N.D. Ind. 1989).
California District Court holds upward departure from guideline range is not grounds for withdrawal of plea. (790) The defendant pled guilty to one count in exchange for dismissal of another two counts. Once the court decided that upward departure was warranted based upon the level of planning necessary to carry out the scheme. Defendant then moved to withdraw his plea on the ground that the plea agreement was violated because the court considered evidence relating to dismissed counts. The court refused, acknowledging that while circumstances of this sort might decrease the incentive to plead, there are methods by which the defendant might offset the upward departures, such as acceptance of responsibility. Because the court did not reject the plea agreement, guideline § 6B1.3 allowing for withdrawal of pleas pursuant to Fed. R. Crim. P. 11(e)(1)(A) was not applicable. The defendant had no grounds to withdraw the plea. U.S. v. Ruelas-Armenta, 684 F.Supp. 1048 (C.D. Cal. 1988).
Amended rule allows sentencing guideline recommendations in plea. (790) Effective December 1, 1999, Fed. R. Crim. P. 11(e)(1)(B) covers sentencing guideline recommendations in the plea agreement. Thus, the government may agree to “recommend, or agree not to oppose the defendant’s request for a particular sentence or sentencing range, or that a particular provision of the Sentencing Guidelines, or policy statement or sentencing factor is or is not applicable to the case. Any such recommendation or request is not binding on the court.”
Amended rule permits parties to agree on a sentencing range binding on the court. (790) Effective December 1, 1999, Fed. R. Crim. P. 11(e)(1)(C) permits the government, at the time of a guilty plea, to “agree that a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the sentencing guidelines, or policy statement, or sentencing factor is or is not applicable to the case. Such a plea agreement is binding on the court once it is accepted by the court.”
Amended rule requires advising defendant if he has waived right to appeal. (790) Effective December 1, 1999, Fed. R. Crim. P. 11(c) has a new subsection (6) requiring the court, at the time of a guilty plea, to advise the defendant of “any provision in the plea agreement waiving the right to appeal or to collaterally attack the sentence.”
Article urges greater use of pre-plea presentence reports. (790) The authors surveyed chief federal probation officers and found general opposition to preparing presentence investigation reports prior to plea, although ten districts indicated they had done so in a few instances. Nevertheless, the authors urge greater use of pre-plea presentence reports, arguing that requiring defendants to plead before they see the presentence report is “unjust” because there may be “unknown factors” in the report that increase the sentence. Mark. M. Lanier and Cloud H. Miller, III, Attitudes and Practices of Federal Probation Officers Toward Pre-Plea/Trial Investigative Report Policy, 41 Crime and Delinquency, 364-377 (1995).