Federal Appeals Blog

US v Robinson

No. 13-3683-CR

Second Circuit Court of Appeals

Decided on January 15, 2016

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Issue:

Government Mischaracterizes Defendant in Submission Letter

Whether the Government breached the plea agreement when it described defendant Robinson as a manager of the criminal conspiracy in the sentencing submission letter, where the agreement stipulated that the parties would not advocate for departures from the agreed-upon Sentencing Guidelines range.

Holding:

Submission Letter Breached Agreement

The Second Circuit held that the government breached the agreement with its sentencing submission letter, which described defendant as a manager, attributed to defendant a higher drug weight calculation than stipulated, and advocated for a firearm enhancement.

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Facts:

Defendant was convicted, pursuant to a guilty plea, of conspiring to distribute an unspecified quantity of crack cocaine. The plea agreement contained several provisions stipulating that Robinson’s offense conduct involved at least 28 grams but less than 112 grams of cocaine base, with a base offense level of 26, a three-level reduction for acceptance of responsibility and a criminal history category of III. This resulted in a Guidelines range of 57-71 months’ imprisonment. The agreement stated that “neither a downward nor an upward departure from the Stipulated Guidelines range…is warranted” and that “neither party will seek any departure or adjustment pursuant to the Guidelines that is not set forth herein…” The agreement also permitted either party to “seek a sentence outside of the Stipulated Guidelines range…based upon the factors to be considered in imposing a sentence…to present to the Court any facts relevant to sentencing.”

Defendant argued that the Government breached the agreement by advocating for a higher Guidelines range in its sentencing submission. In its submission, the Government “gratuitously” described defendant as a manager of the criminal conspiracy. It also advocated for a higher drug weight calculation than was stipulated in the agreement, as well as a firearm enhancement. At sentencing, the district court judge stated that he had not considered the managerial role enhancement until after the Government’s letter, and he proceeded to apply the two-level enhancement. Defendant was sentenced to 120 months’ imprisonment. Defendant appealed, claiming that the Government’s letter breached the agreement.

Analysis:

Government Did Not Present Facts in Characterizing Defendant as a Manager

While the plea agreement reserved the Government’s right to present relevant facts to the court, the submission letter did not describe such facts. The Government did not list any specific facts regarding defendant’s role as a manager that might have formed the basis for the enhancement, rather, the Government used the Guidelines’ term of “manager” in a conclusory fashion. The Second Circuit explained that this strategy—characterizing Robinson as a leader without a single fact supporting the claim—“could have served no purpose other than to call the district court’s attention to the possibility of a role enhancement.” Had the Government instead supplied facts to support the claims made in the submission, there would have been no breach of plea agreement. Robinson’s sentence was vacated, and his case remanded to a different judge.

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U.S. v Munoz

408 F.3d 222

Fifth Circuit Court of Appeals

Decided on April 29, 2005

Issue:

Government Advocates for Higher Offense Level at Sentencing

Whether the Government breached the plea agreement when, at sentencing, it advocated for a base offense level of 29, four points higher than the one stipulated in defendant Munoz’s plea agreement.

Holding:

Government Contradicted Promise Set Forth in Agreement

The Fifth Circuit held that the Government breached the agreement by advocating for an offense level other than the one stipulated, and defendant’s sentence was therefore vacated and remanded.

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Facts:

Defendant Munoz was involved in a Ponzi scheme that defrauded numerous individuals of their funds for falsified investments. Munoz and his codefendants were indicted for 33 counts of various instances of conspiracy, wire fraud, mail fraud, and money laundering. Munoz pled guilty, pursuant to a plea agreement, to conspiracy to commit wire and mail fraud and to conspiracy to commit money laundering. Per the agreement, the Government agreed to a total offense level of 25, combined with a criminal history category of I, with a sentencing guidelines range of 57-71 months of imprisonment.

The presentence report (PSR), however, calculated Munoz’s sentence differently: recommending a total offense level of 29, with a criminal history category of I, yielding a sentencing guidelines range of 87-108 months’ imprisonment. The higher offense level resulted because the crime was committed through abuse of a position of trust. Munoz filed a written objection to the PSR and asked the district court to follow the calculation set forth in the plea agreement. At sentencing, Munoz again renewed his objection to the PSR’s recommendation of the abuse-of-trust enhancement. The Assistant United States Attorney (AUSA) urged the application of the enhancement, and stated that he was free to take that position despite it not being stipulated in the plea agreement. The district court sentenced Munoz to 90 months of imprisonment for the money laundering and 60 months for the wire fraud conviction, to run concurrently. Munoz appealed, arguing that the Government breached the agreement when it argued for the enhancement at sentencing.

Analysis:

Government Must Adhere to the Terms and Conditions of the Agreement

If a defendant pleads guilty as part of an agreement, the Government must follow the terms it set forth in the agreement. “When a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled” (Santobello v New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed2d 427 (1971). In determining whether the Government breached the agreement, the Fifth Circuit considers whether the Government’s conduct was “consistent with the defendant’s reasonable understanding of the agreement.”

The Fifth Circuit affirmed that the Government breached the agreement, as the document stated that both parties “agree that the applicable sentencing guidelines should be calculated as follows” The agreement set out specific calculations, which did not include an enhancement for abuse of trust. Because the Government did not include that enhancement in the agreement, the parties agreed it was not an applicable guideline.

Nevertheless, the Government advocated for the application of the enhancement at the sentencing hearing, and the AUSA stated that “I…did not mention this aspect in the Plea Agreement, but that didn’t mean I was not free to argue my position about it.” The Fifth Circuit disagreed, however, concluding that because the enhancement was not part of the agreement, advocating for it at the sentencing hearing constituted a breach. The Government contradicted its promise set forth in the agreement. Accordingly, defendant Munoz’s sentence was vacated and remanded before a different judge.

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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.

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U.S. v E.V.

550 F.3d 747

Eighth Circuit Court of Appeals

Decided on September 14, 2007

Issue:

Agreement Stipulated a Dangerous Weapons Increase Did Not Apply

Whether the Government’s introduction of testimony about defendant’s being armed constituted a breach of plea agreement, where the agreement stipulated that those specific offense characteristics did not apply to defendant’s case.

Holding:

Government Breached Agreement with Testimony as to Firearms

The Eighth Circuit held that the Government breached the agreement by introducing the testimony, but that the breach did not warrant resentencing.

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Facts:

Defendant E.V. was arrested in 2001 while crossing the U.S. border from Mexico with 40 pounds of marijuana. In custody, defendant ascertained information from a fellow inmate and major trafficker that he was seeking to hire hit men to kill two witnesses who would testify against him in court. E.V. began working with the F.B.I. and acted as a cooperating witness. During this work, defendant formed an association with Special Agent Rich Schneider, with whom he spoke with on a daily basis and met with at least three to four times per week. After two years in the Witness Protection Program, E.V. reached out to Schneider expressing intent to resume his role as a cooperating witness for the F.B.I. However, defendant was still under supervision of the Parole Commission, so Schneider instructed E.V. to refrain from any operations until his parole expired.

Nevertheless, E.V. continued to relay information to Schneider, who followed up on that information on two occasions. The third time, defendant conveyed information concerning a drug dealer named “Gato” who offered E.V. the opportunity to travel to Minnesota to collect a drug debt of $400,000. Schneider could not obtain the authorization necessary for E.V. to engage in this activity, so Schneider told E.V. not to move forward. E.V. did so anyway, and proceeded to Minnesota where he collection a portion of the drug money and was arrested by the F.B.I and D.E.A. Defendant was indicted for conspiracy to distribute in excess of 1,000 kilograms of marijuana.

Before sentencing, E.V. attempted to obtain evidence as to his relationship with Schneider, and he filed a memorandum addressing his cooperation with the authorities and the “encouragement he received from the Government to act on their behalf.” In response, the Government announced its position that defendant’s sentencing arguments forced it to offer the firearm evidence in rebuttal. After an evidentiary hearing, the district court imposed a sentence of 46 months’ imprisonment followed by four years of supervised release. Defendant appealed his sentencing, contending that the Government breached the agreement by introducing evidence that he possessed a firearm during the commission of the offense, and for arguing against his motion for a downward departure.

Analysis:

Testimony Regarding Firearms Breached ‘Enforceable, Bargained-For’ Agreement

Defendant’s plea agreement specified that “the parties agree that none of the specific offense characteristics listed under Guideline Section 2D1.1(b) is applicable in this case.” This clause encompasses subsection 2D1.1(b)(1), which requires a two-level increase to the base offense level “if a dangerous weapon was possessed” during the commission of the charged offense. The Eighth Circuit held that this agreement was an “enforceable, bargained-for term of the plea agreement” (United States v Thompson, 403 F.3d 1037, 1040 (8th Cir.2005)), and that the prosecutor’s introduction of the testimony regarding the firearms constituted a breach of that agreement.

The Eighth Circuit has previously held that the introduction of evidence contradicting a specific stipulation amounts to a breach of the agreement. In United States v. Dewitt, 366 F.3d 667, 669-70 (8th Cir.2004), the parties stipulated to an applicable drug quantity and base offense level, but the Government introduced evidence at sentencing in support of a higher drug quantity, and the Eighth Circuit held that the prosecutor breached the plea agreement. Likewise in this case, the stipulation that the dangerous weapon offense characteristics did not apply precluded the Government from introducing evidence to the contrary, either as purported rebuttal evidence or pursuant to the more general agreements that the parties could seek departures from the applicable guidelines range.

However, the Eighth Circuit found that the Government’s breach did not impact defendant’s sentence. The court adhered to its assurance that “there’s not going to be a gun enhancement.” The Eighth Circuit therefore denied defendant’s request to remand the case for resentencing, and affirmed the judgment despite the Government’s breach.

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