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US v Lovelace
565 F.3d 1080
Eighth Circuit Court of Appeals
Decided on May 19, 2009
Issue:
Appeal Waiver Enforceable?
Whether 1) defendant’s appeal waiver is enforceable when, despite absence of objection at sentencing, the Government breached the plea agreement, and 2) whether the district court erred when it relied on undisclosed, irrelevant factors when imposing the sentence and whether this affected Lovelace’s substantial rights.
Holding:
Breach Invalidates Waiver, District Court Erred
The Eighth Circuit held that 1) the appeal waiver is unenforceable despite defendant’s lack of objection, as the Government breached the plea agreement at sentencing, and 2) the district court’s reliance on information not disclosed in the presentence report (PSR) affected Lovelace’s substantial rights.
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Facts:
Defendant Lovelace pled guilty, pursuant to a plea agreement, to being a felon in possession of ammunition. The agreement stated that “a base offense level of 20 applies if the defendant committed any part of the instant offense subsequent to sustaining one felony conviction of either a crime of violence or a controlled substance offense.” The indictment charged one qualifying felony, a 1989 conviction for attempted burglary, a crime of violence.
The PSR later detailed that Lovelace had not one qualifying felony conviction, but two, and it recommended a base offense level of 24. The second conviction was a controlled substance offense in 2000. At sentencing, the court asked the Government if it objected to the PSR’s base offense level and the Government stated that it did not. Lovelace did not object to the Government’s statement, and the court adopted the base offense level of 24. The advisory guidelines range was 110-137 months, and the court sentenced defendant to 120 months’ imprisonment, the statutory maximum.
Lovelace appealed, contending that the Government breached the agreement, and the Government moved to dismiss the appeal, arguing that defendant did not raise the issue with the district court.
Analysis:
Plain Error Review
The Eighth Circuit has dismissed appeals and enforced appeal waivers even when the Government allegedly breached the plea agreement if the defendant did not first raise the argument with the district court. In United States v Fairbanks, 144 F.3d 586, 586 (8th Cir.1998), defendant argued that the appellate waiver is unenforceable because the government breached the plea agreement. But because Fairbanks did not raise the alleged breach at sentencing, the Court declined to address the argument.
The Eighth Circuit held, however, that Fairbanks does not squarely address the issues in this case so the Court examined Lovelace’s claim under the plain error test, holding that the Government breached the agreement by advocating for a higher base offense level at sentencing. The agreement stipulated that the base offense level was 20, and although the district court was not bound by the offense level in the agreement, it was a bargained-for term of the agreement.
Rule 32 and Advance Disclosure of Material Information
Furthermore, Lovelace contends that certain comments by the district court judge, including the judge’s personal knowledge of Lovelace’s criminal history based on previous service as a city prosecutor, resulted in an improper sentence and violated the adversarial process for Fed. R. Crim. P.32, which the Eighth Circuit again reviewed for plain error. Under this rule, Lovelace must show 1) error, 2) that is plain and 3) that affects substantial rights. The fourth step of the plain error review requires Lovelace to show that that error “seriously affects the fairness, integrity, or public reputation of judicial proceedings.”
Rule 32 also requires advance disclosure to the defendant of material information relevant for sentencing. Congress has emphasized that by allowing a defendant to respond to information in the PSR, the court would receive more accurate information thereby allowing it to impose the most appropriate sentence. Rule 32 directs “the probation officer to prepare the presentence report addressing all matters germane to the defendant’s sentence” and “must…identify any factor relevant to…the appropriate kind of sentence.” (Burns v. United States, 501 U.S. 129, 134, 111 S.Ct. 2182, 115 L.Ed.2d 123 (1991). The PSR should contain “any prior criminal record” and the court must rule on disputed portions of the PSR.
The Eighth Circuit pointed to United States v Hayes, 171 F.3d 389 (6th Cir.1999) as instructive here, where the district court in that case reviewed victim letters, undisclosed to the defendant, before imposing a sentence. The Sixth Circuit held that by ruling on the undisclosed letters, the district court committed reversible plain error. Here, in addition to the PSR, the district court also relied on undisclosed information—the judge’s knowledge of a 1987 incident with Fargo police officers, which defendant characterizes as a suicide attempt. The Eighth Circuit held that this violated the Rule 32 process, and because the judge discussed this undisclosed issue at some length before imposing a sentence, Lovelace has shown that but for the error, the district court would have imposed a more favorable sentence. The judgment was therefore vacated and the case remanded for resentencing before a different district judge.