US v. Lawlor

168 F.3d 633

Second Circuit Court of Appeals

Decided on Feb. 23, 1999

Issue:

Government Agrees with Enhancement at Sentencing, Despite Plea Agreement

Whether the Government violated the plea agreement with defendant Lawlor when, at sentencing, it agreed with the pre-sentence reports’ (PSR) application of a higher offense level than was stipulated in the agreement. 

Holding:

Government Violates Plea Agreement by Supporting Enhancement not Stipulated in Plea Agreement

The Government breached the plea agreement when it agreed with the PSR’s application of Sentencing Guidelines despite the plea agreement’s contradictory promise. 

Facts:

Defendant Richard Lawlor fought with his cell mate while incarcerated and, during the melee, may have struck a corrections officer in the face. He pled guilty to assaulting a federal corrections officer and was sentenced to the statutory maximum of twelve months’ imprisonment. The plea agreement stipulated that the Government “agree[d] that § 2A2.3 of the Guidelines, Minor Assault, is applicable to Count One” to determine Lawlor’s base offense level. The PSR, however, recommended that the court apply Sentencing Guideline § 2A2.4 (“Obstructing or Impeding Officers”), instead of the section that was listed in the agreement. The PSR also recommended a three-level enhancement pursuant to § 2A2.4(b)(1) of the Guidelines for conduct that “involved physical contact.”

Defendant objected to the PSR, arguing that the enhancement contradicted the terms of the plea agreement. At sentencing, the district court noted defendant’s objections to the PSR and asked counsel if she wanted to add anything to the arguments she had previously made; she declined. The district court then asked the Government if it wished to respond to defendant’s arguments, and it stated that, “the Government feels that the Pre-sentence Report was appropriately scored in the first instance.” The district court accepted the Government’s argument and, finding the recommended enhancement was appropriate, sentenced defendant to 12 months’ incarceration to run consecutively with his term of imprisonment. 

Analysis:

Defendant Not Required to Object to Violation of Plea Agreement at the Time of Sentencing

The Government argued that because the defendant’s counsel did not object to the application of the sentence enhancement at the sentencing hearing that the Second Circuit was bound to apply a plain error standard of review. The Second Circuit disagreed, explaining that a defendant is not required to object to the violation of a plea agreement at the sentencing hearing. (See United States v. Salcido-Contreras, 990 F.2d 51, 52 (2d Cir. 1993) 

What Both Parties ‘Reasonably Understand’ to be the Terms of Agreement

To determine whether there was a breach of plea agreement, “a court must look to what the parties reasonably understood to be the terms of the agreement” and “any ambiguity should be resolved against the government.” (United States v. Miller, 993 F.2d 16, 20 (2d Cir. 1993)). The Government was bound by its stipulation in the plea agreement that § 2A2.3 was “applicable to Count One.” Yet, at the sentencing hearing, when the Government was asked for its position with respect to the defendant’s objection to the PSR recommendation that a three-level enhancement for physical contact pursuant to § 2A2.4(b)(1) be applied, the Government agreed with the PSR. By concurring with the PSR’s enhancement, the Government breached the plea agreement.  

Government Should Take Greater Care with Respect to Plea Agreements

The Second Circuit reiterated the admonition that it has expressed to the Government on other occasions, that it “take much greater care in fulfilling its responsibilities where plea agreements are involved.” (United States v. Brody, 808 F.2d 944, 948 (2d Cir. 1986)). Given the Government’s often decisive role in the sentencing context, the Court will not hesitate to scrutinize the Government’s conduct to ensure that it comports with the highest standard of fairness. The Second Circuit vacated Lawlor’s sentence and ordered that he be re-sentenced before a different district judge. 

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