Government Breached Plea Agreement by Using Information from Proffer to Argue for Higher Sentence

United States v. Chavful, No. 13-11173 (5th Cir. Mar. 20, 2015) (Smith, Prado, Owen)

The PSR alleged 3 alleged drug transactions.  Chavful plead guilty to the third: 5kg of cocaine and 200lb of marijuana.  The first, negotiations for 10kg of cocaine and 1000lb of marijuana, Chavez argued in his objection and at sentencing was merely the negotiation that culminated in the third transaction.  By holding him accountable for 15kg of cocaine and 1,200lb of marijuana, Chavez argued Probation was double counting the same transaction because they were fact-related.  Probation, and then the Government, argued the first was a separate transaction because of the intervening, second sale of 30kg of marijuana.  Chavful disclosed the second sale during the proffer interview and objected when the Government relied on the second sale to argue the first transaction was a separate transaction from the third.  Neither Probation nor the Government added the 30kg of marijuana to Chavful’s relevant conduct.

The plea agreement included the Government’s promise that “[a]ny information provided by Chavful, other than that charged in the pending indictment, in connection with Chavful’s assistance to the United States, including debriefing and testimony, will not be used to increase Chavful’s Sentencing level.”  The plea agreement specifically incorporates U.S.S.G. § 1B1.8, which prohibits the use of information obtained by the Government as part of a cooperation agreement from being used to determine the applicable guideline range.

The panel adopts Chavful’s interpretation that the Government cannot rely on protected information to advocate for a greater sentence.  The Government breached the plea agreement by using protected information to advocate for a greater sentence.  The sentence was vacated and remanded for re-sentencing.

AUSAs Will Not Ask for Waiver in Plea Agreement of Ineffective Assistance of Counsel Claims

Attorney General Eric Holder announced a new policy that "the Department of Justice will no longer ask criminal defendants who plead guilty to waive their right to bring future claims of ineffective assistance of counsel."  Deputy Attorney General James Cole authored the memo instructing assistant U.S. attorneys to follow this new policy.  Prior to this policy, "35 of the department's 94 U.S. Attorney’s Offices sought waivers of future claims that included claims of ineffective assistance of counsel."

Ignored Plea Agreement Prompts Partial Reversal and Dismissal

United States v. Hughes, No. 12-60005 (Aug. 8, 2013) (King, Higginbotham, Clement)

            Hughes contested his convictions and sentence in this distribution conspiracy case. The panel affirmed in part and reversed in part the judgment of the district court.

            On the morning of trial, Hughes decided to plead guilty. The Government informed the court of an oral agreement for Hughes to plead guilty to the conspiracy count and continue the other four counts until sentencing at which time the Government would move to dismiss those counts. Without addressing this oral agreement, the court took Hughes’ guilty plea to all five of the counts. Hughes tried to withdraw his guilty pleas later, but the court denied that request. At sentencing, the Government moved to dismiss all but the conspiracy count, but the court denied that request and handed down sentences on all five counts of Hughes’ indictment.

            Hughes raised three main arguments on his appeal: (1) his change-of-plea hearing was procedurally deficient under Federal Rule of Criminal Procedure 11, (2) the district court abused its discretion in denying his motion to withdraw his guilty pleas, and (3) the district court abused its discretion in not dismissing the telephone counts on the Government’s motion.

            In regards to Hughes’ first argument, the panel found it to be unavailing since Hughes failed to show a reasonable probability that he would not have pleaded guilty. In regards to Hughes’ second concern, the panel held that the district court did not abuse its discretion when it denied Hughes’ motion to withdraw his guilty pleas. According to the Carr test, the district court’s decision was justified. Finally, the panel found that the district court failed to supply reasoning for sentencing Hughes to the substantive counts, so the refusal to dismiss Counts 2-5 was an abuse of discretion. The panel affirmed the judgment of the court with respect to Hughes’ conspiracy count, but reversed the denial of the motion to dismiss Counts 2-5. The panel then dismissed Counts 2-5.

            Judge Higginbotham concurred with the judgment handed down by the district court because neither Hughes nor the government clarified whether the plea deal was still in effect as of sentencing.

            Judge King dissented. She argued that Hughes should have been given notification as to whether the plea agreement concerning Counts 2-5 was accepted or declined. Furthermore, since Hughes was denied his right to withdraw his guilty plea, she would have vacated the convictions and sentence and remanded the matter to the district court to clarify its stance on accepting or rejecting the plea agreement.

Thanks to FPD Intern Matthew Gonzalez for this blog post.

AG Mandatory Minimum Policy Does Not Confer Benefits to Defendants Already Charged and Convicted

United States v. Barnes, No. 12-3562 (Sept. 17, 2013) (Davis, Jones, Benavides) (per curiam)

Barnes pleaded to possession with intent to distribute 50 grams of methamphetamine and was sentenced to the statutory mandatory minimum sentence of 120 months of imprisonment.  Barnes argued in his appeal that the Attorney General’s memorandum dated August 12, 2013, affords him sentencing relief.  The panel rejected that argument because the memo was issued after Barnes was charged and convicted, and because it expressly notes that the “policy set forth herein is not intended to create or confer any rights privileges, or benefits in any matter, case, or proceeding.”

The panel also rejected Barnes’ argument that the Government breached the plea agreement by failing to file a § 5K1.1 motion for downward departure.  The plea agreement left any such filing to the Government’s discretion, and Barnes agreed at the plea hearing that no promises existed outside the plea agreement.

As a side note, the Attorney General also issued a memorandum on August 29, 2013, detailing how the new mandatory minimum prosecution policy applies to pending cases.  The memo encourages prosecutors, in their discretion, to apply the policy to defendants who have pled guilty but have not been sentenced.  The memo also specifically states that the policy is not retroactive to defendants already sentenced.

Email Promise by Prosecutor Not Part of Plea Agreement, So No Breach

United States v. Long, No. 11-20726 (July 2, 2013) (Stewart, Smith, Wiener)

Double-check, no, triple-check those plea agreements to make sure any negotiated terms are documented therein. If the plea agreement has a merger clause, which most do, then any outside communications with the prosecutor will not be incorporated into the plea agreement.

Here, Long appealed his sentence, arguing the Government breached its plea agreement with him by supporting the leader/organizer sentencing enhancement recommended in the presentence investigation report ("PSR"). The prosecutor indicated to Long’s attorney via email that he would not argue for a role enhancement, but the plea agreement did not mention a role enhancement and contained a merger clause that the written plea agreement constitutes the complete plea agreement. Before accepting Long’s plea, the district court even asked Long if there were any other promises or assurances not documented in the plea agreement, and he responded no.

The panel affirmed that the email was not part of the plea agreement, that Long did not rely on the email exchange in pleading guilty, and that, even if he had, such a reliance would have been unreasonable in light of the plea agreement’s merger clause. The panel affirmed the sentence, which was based on the district court’s ruling that the Government did not breach the plea agreement.

Court Must Accept or Reject Entire (c)(1)(C) Agreement, May Not Accept Parts and Reject Others; Probably Goes for (c)(1)(A) Agreements, Too

United States v. Self, No. 08-40624 (5th Cir. Feb. 3, 2010) (Garza, DeMoss, Clement)

Self finds the court confronting an issue of first impression in the Fifth Circuit: whether a court can accept or reject a Rule 11(c)(1)(C) plea agreement on a "piecemeal basis." Answer: no. And the reasoning appears to be equally applicable to (c)(1)(A) agreements.

Self was charged with two counts of bank robbery, and two 924(c) carrying counts. He hammered out a (c)(1)(C) agreement with the Government, which entailed a guilty plea to one bank robbery and one 924(c), dismissal of the remaining counts, and a sentence of 171 months (87 months for the bank robbery + 84 months consecutive on the gun count). Additionally, "Self waived the right to appeal 'on all grounds,' but reserved the right to appeal the failure of the district court to impose a sentence in accordance with the terms of the agreement." A magistrate judge took Self's guilty plea, and recommended that the district court accept the agreement. So far, so good.

But then—stop me if you've heard this one before—the probation officer threw a spanner in the works: "The PSR determined that Self was a career offender and recommended a career offender enhancement on [the bank robbery count] that raised the advisory guidelines range to 188 to 235 months. When the mandatory minimum of 84 months for [the gun count] was added, the resulting guidelines range was 272 to 319 months’ imprisonment." At sentencing:

The district court informed Self of his right to withdraw his guilty plea and that if he did not withdraw his plea, he might receive a sentence less favorable than that agreed to in the plea agreement. Self declined to withdraw his guilty plea. The district court reiterated that it would accept all of the plea agreement’s terms except the recommended sentence as to [the bank robbery count]. Self again stated that he did not wish to withdraw his plea. Self allocuted and his defense attorney requested the minimum sentence. The district court then sentenced Self to the minimum sentence of 188 months for [the bank robbery count], taking into account the career offender enhancement, and 84 months for [the gun count], resulting in a sentence of 272 months.

Self appealed his sentence. The Government raised the appeal waiver. The court said:

Because we conclude, infra, that the district court rejected the plea agreement in toto, Self’s waiver of rights in that agreement does not bar his appeal. [cites]. Even assuming Self’s appeal waiver was enforceable, its terms do not apply here. The plea agreement reserved Self’s right to appeal “the failure of the Court, after accepting the agreement, to impose a sentence in accordance with the terms of this agreement.” The 272 month sentence imposed by the district court exceeded the 171 month sentence stipulated to in Self’s plea agreement; the sentence was not “in accordance” with the plea agreement’s terms. There is no obstacle to Self’s appeal.

On to the substance: "Self argue[d] that he is entitled to a sentence reduction because the district court accepted the plea agreement but did not comply with its terms." But because "Self did not raise any objection to the proceedings at the sentencing hearing and he did not assert this argument as a basis for a sentence reduction in either of his post-hearing motions[,]" the court reviewed for plain error.

Before reaching the error prong, the court first had to decide whether the district court had accepted the plea agreement but failed to comply with its sentencing terms (as Self argued), or whether it had rejected the plea agreement (the Government's position). Examining the district court's statements at the sentencing hearing against the background of Rule 11, the court of appeals concluded that the district court rejected the entire plea agreement. The district court, after finding that the probation officer's calculation was correct, said "[I] advise the defendant that I will not follow, cannot follow . . . that portion of the plea agreement, which would have set the sentence . . . [at] 70 to 87 months. . . . I must inform the parties of my rejection of that part of the plea agreement." The court then advised Self, consistent with Rule 11(c)(5), of his right to withdraw his guilty plea, saying "if you don’t withdraw . . . it would be that part of the plea agreement that would be changed, however, the rest of the plea agreement will remain the same." Self opted not to withdraw his plea, and was sentenced to 272 months' imprisonment, rather than the 171-month sentence in the plea agreement. Said the court:

Although we have found no case in our Circuit that explicitly addresses whether a plea agreement may be accepted or rejected on a piecemeal basis, based on the language of Rule 11, we conclude that it cannot. See FED. R. CRIM. P. 11(c)(3)(A) (finding that “the court may accept the agreement, reject it, or defer a decision until the court has reviewed the presentence report” (emphasis added)); [a couple of cases]. Rule 11 speaks in terms of a “plea agreement” and “does not distinguish between ‘sentence bargains’” and “so-called ‘charge bargains,’ in which a criminal defendant typically pleads guilty to a specific charge in exchange for the prosecution agreeing to drop other charges.” At least one other court has concluded that the “rejection of a stipulated sentence constitutes rejection of the entire plea agreement, thereby triggering the mechanisms in . . . Rule 11(c)(5).” We agree. By rejecting the agreed-to sentence of 87 months on Count III, the district court constructively rejected the plea agreement in toto. Further indicia that the district court rejected the plea agreement is that it admonished Self as required by Rule 11(c)(5), which sets forth the warnings that must be delivered to a defendant when the court rejects a plea agreement.

(most cites omitted). Lets pause for a moment to talk about a couple of things before we move on. First, the court explained how to avoid this mess in the first place: "We note that the district court unnecessarily muddied the waters by making statements to the effect that it was rejecting 'that portion of the plea agreement' specifying an 87-month sentence. The better practice is to make clear that the entire plea agreement is being rejected and then give the Rule 11 warnings." Second, remember that Rule 11(c)(3)(A) covers not only (c)(1)(C) agreements, but (c)(1)(A)'s, as well. Plus, when you think about it, this case actually involves a combination (c)(1)(A)/(c)(1)(C) agreement. Thus, the court's reasoning should apply equally to (c)(1)(A)'s. How might this come up in the context of a (c)(1)(A)-only plea? I'm not entirely sure, but keep the case in mind if you have one those that starts going south.

Okay, back to plain error. Although the district court had discretion to reject the agreement, it "was not permitted to reject the plea agreement and then re-impose it on the parties with terms that it found acceptable."

In this respect, the colloquy between Self and the district court is problematic. Although the district court followed the dictates of Rule 11(c)(5) in advising Self that he could withdraw his plea and might be sentenced more harshly, the district court at the same time stated that the plea agreement would stand in all respects except for the sentence. Thus, it is unclear whether Self understood that if he withdrew his plea of guilty, he could either proceed to trial or try to negotiate a new plea agreement, or if he persisted in his guilty plea, he would be sentenced without any of the constraints or benefits of the plea agreement, including the government’s agreement to drop two of the counts. Instead, it appeared that the district court was offering the same terms as the plea agreement, except that the sentence would be changed.

The error affected Self's substantial rights. Instead of getting the 171-month sentence he bargained for, "Self was subjected to an altogether different bargain—one of the district court’s making. Had the district court rejected Self’s plea agreement in toto and sent the parties back to the drawing board, we cannot say what agreement they might have struck."

Which brings us to the last prong: "Failure to properly inform Self that the entire plea agreement was being rejected, compounded by the district court’s error in reimposing all of the terms of the plea agreement on Self, except for the agreed-to sentence under Rule 11(c)(1)(C), requires reversal because such error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.'" Hence, vacation of Self's conviction and remand for proceedings before a different judge.

By the way, notice anything missing from the court's analysis? Perhaps a discussion of whether the error was "plain?" Don't worry, it's there. It just isn't identified as such. The court's discussion of the fairness, etc. prong notes that "[s]trict compliance with Rule 11 is generally required," and that, "[f]or the same reasons that the district court may not involve itself in plea negotiations, it may not reject a plea agreement and then, nonetheless, impose it on the parties with modifications that it chooses." Plainness is also implicit in the court's explanation of why there was error, so that part of plain error review is covered.

Forfeited Claim That Government Breached Plea Agreement Is Reviewed for Plain Error; Third Prong Requires Showing That Breach Affected Sentence

Puckett v. United States, No. 07-9712 (U.S. Mar. 25, 2009)

The question presented: "whether a forteited claim that the Government has violated the terms of a plea agreement is subject to the plain-error standard of review set forth in Rule 52(b) of the Federal Rules of Criminal Procedure."

The answer (per Justice Scalia for a seven-vote majority): yes.

Some facts: Puckett was charged with armed bank robbery and a 924(c) count. He reached an agreement with the Government to plead guilty to both counts. The Government agreed that Puckett qualified for all three acceptance points, and also to recommend the low end of the advisory range. The Government moved for the third level before rearraignment. "Because of delays due to health problems experienced by Puckett, sentencing did not take place for almost three years" after rearraignment. In the meantime, Puckett helped another man defraud the Postal Service. After confessing that tidbit to his probation officer, the PO revised the PSR and recommended denial of acceptance. When the case finally got to sentencing, the Government opposed acceptance, remarking that its third-level motion was filed "a long time ago." The district court denied acceptance on the ground that one who commits another crime while awaiting sentence rarely gets acceptance. But the judge followed the Government's recommendation for a low-end sentence, which was 262 months on the robbery count plus 84 months on the gun count. With acceptance, the low end of the robbery count would have been 188 months.

Importantly, at no time during the exchange did Puckett’s counsel object that the Government was violating its obligations under the plea agreement by backing away from its request for the reduction. He never cited the relevant provision of the plea agreement. And he did not move to withdraw Puckett’s plea on grounds that the Government had broken its sentencing promises.

Puckett appealed, arguing that the Government breached the plea agreement. The Government, for some reason, conceded the breach, but argued that Puckett forfeited his claim by not raising it in the district court. The court of appeals agreed with the Government, and reviewed for plain error. It held there was error that was plain, but that Puckett failed to show the error affected his substantial rights in light of the district court's comment that acceptance is rarely given when a defendant continues to commit crimes.

The Supreme Court granted cert to resolve a circuit split. And, as you know by now, held that a forfeited claim that the Government breached a plea agreement is reviewed for plain error. Why? Because there's nothing about that issue that justifies disregarding the general rule requiring contemporaneous objections and reviewing forfeited claims for plain error. The Court also:

• Declined once again to decide whether a structural error automatically satisfies the third prong of plain error review, "because breach of a plea deal is not a 'structural' error[.]"
• Also declined to decide whether the automatic-reversal rule of Santobello v. New York---which applies when "the Government's breach of a plea agreement has been preserved"---survives more "recent elaboration of harmless-error principles in cases such as Fulminante and Neder."
• Explained that, on the third plain-error prong, "[w]hen the rights acquired by the defendant relate to sentencing, the 'outcome' he must show to have been affected is his sentence."
• Further explained that "[t]he fourth prong is meant to be applied on a case-specific and fact-intensive basis[,] . . . emphasiz[ing] that a 'per se approach to plain error review is flawed.'"

Justice Souter dissented, joined by Justice Stevens:

I agree with the majority that plain error is the proper test, but depart from the Court’s holding that the effect in question is length of incarceration for the offense charged (as to which the error here probably made no ultimate difference). I would hold that the relevant effect is conviction in the absence of trial or compliance with the terms of the plea agreement dispensing with the Government’s obligation to prove its case.

Under that view, "a defendant's substantial rights have been violated whenever the Government breaches a plea agreement, unless the defendant got just what he bargained for anyway from the sentencing court." And the fourth prong would always be satisfied too, as "the fairness and integrity of the Judicial Branch suffer when a court imprisons a defendant after he pleaded guilty in reliance on a plea agreement, only to have the Government repudiate the obligation it agreed upon." That view did not carry the day.