United States v. Atwood

• Court: Court of Appeals for the First Circuit
• Decided: May 6, 1992
• Docket: 91-2276
• Status: Published

Opinion

USCA1 Opinion

May 6, 1992

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No. 91-2276

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                  THOMAS P. ATWOOD,

                                Defendant, Appellant.

                              _________________________

APPEAL FROM THE UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF MAINE

                       [Hon. Gene Carter, U.S. District Judge]
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                              _________________________

                                        Before

                                 Breyer, Chief Judge,
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                            Selya and Cyr, Circuit Judges.
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                              _________________________

Robert M. Napolitano on brief for appellant.
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               Richard  S.  Cohen,  United  States Attorney,  and  F.  Mark
               __________________                                  ________
          Terison,  Assistant  United States  Attorney,  on  brief for  the
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          United States.

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SELYA, Circuit  Judge.   This criminal  appeal requires
                    SELYA, Circuit  Judge.
                           ______________

          that  we  determine  whether   the  government  shortchanged  the

          appellant in respect to complying with a plea agreement.  Finding

          that appellant neglected to  ask the government to do  that which

          he  now  condemns the  government for  not  doing, we  affirm the

          conviction  and sentence.   Cf.,  e.g., John  16:24 ("Ask  and ye
                                      ___   ____  ____

          shall receive.").

                                          I
                                          I
                                          _

                                      Background
                                      Background
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                    On March 13, 1991, a federal grand jury in the District

          of  Maine  returned  an  indictment  charging defendant-appellant

          Thomas  P. Atwood  with  conspiracy to  distribute lysergic  acid

          diethylamide (LSD).  In July, appellant pled guilty pursuant to a

          written plea  agreement (Agreement).  The  Agreement provided, in

          relevant part, that appellant would cooperate with the government

          and assist in ongoing investigations.  In return, the prosecution

          made three essential commitments:

                    1.   To  grant appellant  use immunity  (save
                    only for serious crimes of violence).

                    2.   To  refrain  from  opposing a  two-level
                    reduction in the base offense level, U.S.S.G.
                       3E1.1,  for   appellant's  acceptance   of
                    responsibility.

                    3.   To  divulge  the  extent of  appellant's
                    assistance  in  certain circumstances,  viz.:
                    "At the request of  the defendant, the United
                     ________________________________
                    States  Attorney's Office for the District of
                    Maine will make known the  cooperation of the
                    defendant to any individual or entity to whom
                    the   defendant   wishes   such   information
                    disseminated."  (Emphasis supplied.)

          The  Agreement  contained no  promise  of  a specific  sentencing

                                          2

recommendation.    Rather, both  parties  reserved  the right  to

          petition the  district court  "for the  imposition of  any lawful

          sentence . . . ."

                    On  November 26,  1991, appellant  was sentenced.   The

          prosecutor  recommended that the  court impose a  sentence at the

          low end of the guideline sentencing range (GSR).  Apart from this

          comment, the prosecutor, to all intents and purposes, stood mute.

          The  court reviewed  the  presentence  investigation report  (PSI

          Report),  set  the  GSR  at 210-262  months  (offense  level  34;

          criminal history  category IV),1  and sentenced appellant  at the

          range's nadir.  This appeal followed.

                                          II
                                          II
                                          __

                                   Issue Presented
                                   Issue Presented
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                    On appeal, appellant is  represented by a new attorney.

          Counsel's argument  is classic in its simplicity.  He asseverates

          that "the government  breached the  terms of  the plea  agreement

          when  it failed to advise the  sentencing court of the nature and

          extent of the defendant's cooperation."   Had the government done

          so,  counsel's  thesis  runs,  the sentencing  court  might  have

          departed downward, thus shortening appellant's sentence.2
                              
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               1In establishing the GSR, the district court gave Atwood the
          two-level credit for acceptance of responsibility contemplated by
          the Agreement.  The prosecution did not oppose this adjustment.

               2By means  of a supplemental brief,  appellant has attempted
          to  raise a  second  issue, contending  that  the district  court
          improperly relied on two uncounselled "drunk driving" convictions
          in determining his criminal  history score.  But, the  PSI Report
          stated  specifically  that  Atwood  "was  always  represented  by
          counsel"  in his previous dealings  with the courts.   Atwood did
          not  object to, or contradict, this statement.  Similarly, he did

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III
                                         III
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                                       Analysis
                                       Analysis
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                                          A.
                                          A.
                                          __

                                Appellate Jurisdiction
                                Appellate Jurisdiction
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                    We confront, first, a  threshold issue:  the government

          contends that there is no appellate jurisdiction.  We disagree.

                    It is settled beyond peradventure in this circuit that,

          ordinarily, a criminal  defendant cannot ground an appeal  on the

          trial  court's failure  to depart  downward from  the GSR.   See,
                                                                       ___

          e.g., United States  v. Amparo, ___ F.2d ___, ___ (1st Cir. 1992)
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          [No. 91-2010, slip op. at 10]; United  States v. Lauzon, 938 F.2d
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          326, 330 (1st Cir.), cert. denied, 112 S. Ct. 450 (1991);  United
                               _____ ______                          ______

          States v. Romolo, 937  F.2d 20, 22 (1st Cir. 1991); United States
          ______    ______                                    _____________

          v. Harotunian, 920 F.2d 1040, 1044 (1st Cir. 1990); United States
             __________                                       _____________

          v. LaGuardia,  902 F.2d 1010,  1012 (1st Cir.  1990).  But,  this
             _________

          appeal  is  a different  breed  of  cat.    The appeal  does  not

          challenge  the lower court's failure  to depart per  se.  Rather,
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          the  appeal  zeroes  in  on  alleged   prosecutorial  misconduct,

          appellant claiming  that the government breached  a material term

          of  a  binding  plea  agreement.   We  have  regularly  exercised

          appellate jurisdiction  to oversee claims  of that  genre.   See,
                                                                       ___

          e.g., United States v. Canada, ___ F.2d  ___, ___ (1st Cir. 1992)
          ____  _____________    ______

          [No.  91-1691, slip op. at 11-19]; United States v. Oyegbola, ___
                                             _____________    ________
                              
          ____________________

          not object to  the district  court's use of  the "drunk  driving"
          convictions.  Under  these circumstances, the  issue that is  the
          subject of Atwood's supplemental brief has not been preserved for
          appellate review.  See United States v. Dietz, 950 F.2d 50, 55-56
                             ___ _____________    _____
          (1st Cir. 1991) (listing other cases).

                                          4

F.2d ___, ___ (1st  Cir. 1992) [No.  91-1152, slip op. at  8-10];

          United States v. Garcia, 954 F.2d 12, 17-18 (1st Cir. 1992).  The
          _____________    ______

          government has given us  no reason either to doubt  the propriety

          of this practice or to eschew it here.

                    We will not  paint the  lily.  An  appellate court  has

          jurisdiction, on  direct review, to consider an appeal that seeks

          to ascertain  whether the government satisfactorily complied with

          the terms of a plea bargain.3

                                          B.
                                          B.
                                          __

                                      The Merits
                                      The Merits
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                    The  court of  appeals affords  de novo  review to  the
                                                    __ ____

          question  of whether  the  prosecution violated  the  terms of  a

          written  plea agreement in a criminal case.   Canada, ___ F.2d at
                                                        ______

          ___ [slip op.  at 14];  United States v.  Moscahlaidis, 868  F.2d
                                  _____________     ____________

          1357,  1360 (3d  Cir. 1989).   Honoring  this tenet,  and mindful

          that, in the plea-bargaining  context, the prosecution must often

          be held to  "the most  meticulous standards of  both promise  and

          performance," Correale v.  United States, 479 F.2d  944, 947 (1st
                        ________     _____________

          Cir. 1973), we find no hint of any breach.

                    Plea agreements are  to be interpreted  under contract-

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               3The  question  of  appellate jurisdiction  is,  of  course,
          entirely  separate from  the  question of  whether the  defendant
          appropriately preserved  his claim  for direct  appellate review.
          See,  e.g., United States v. Argentine, 814 F.2d 783, 790-91 (1st
          ___   ____  _____________    _________
          Cir. 1987) (discussing applicability  of raise-or-waive rule to a
          claim  that  the prosecutor  transgressed  the  terms of  a  plea
          agreement).    Because  the instant  appeal  is  baseless on  the
          merits,  see text  infra, it  would be  supererogatory for  us to
                   ___       _____
          consider  the issue of procedural default.  We, therefore, abjure
          that exercise.

                                          5

law  principles.  See  Garcia, 954 F.2d  at 17; United  States v.
                            ___  ______                   ______________

          Hogan, 862 F.2d 386, 388 (1st Cir. 1988).  Here, the Agreement is
          _____

          crystal clear.   It limits  the government's obligation  to offer

          its views about defendant's  cooperation to those instances where

          the defendant so requests.  We assume this clause means precisely

          what it says;  after all,  defendant and his  trial counsel  both

          signed  the  Agreement  and told  the  district  judge they  were

          satisfied that it faithfully recounted the bargain.4

                    Appellant   concedes  that   he  never   requested  the

          prosecutor  to  address the  cooperation question  at sentencing.

          Having  failed to  ask, appellant  was not  entitled to  receive.

          Moreover,  it was  altogether  reasonable for  the prosecutor  to

          conclude that the lack  of an affirmative request was  not merely

          an oversight.  The PSI Report alluded  to appellant's cooperation

          in  paragraph 17     a paragraph  to  which appellant  raised  no

          objection.5  Under the  explicit provisions of the  Agreement, it

          was for appellant to  decide whether his cause was  better served

          by  reliance on  the  PSI  Report or  by  augmenting it  with  an

          extemporaneous account  from the prosecutor.   The government had
                              
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               4If  the Agreement were deficient for failure to spell out a
          further,  expanded promise,  an objection  to that  effect should
          have been raised at the change-of-plea hearing.  Garcia, 954 F.2d
                                                           ______
          at 17 n.3;  Hogan, 862 F.2d at  389 n.4.  No  such objection ever
                      _____
          surfaced in  the court  below.   And, furthermore,  the Agreement
          contained  defendant's express  warranty  "that  there [were]  no
          further or  other agreements  or stipulations, either  express or
          implied, other than those contained in th[e] Agreement."

               5Appellant did register eleven objections to the PSI Report,
          challenging  thirteen different  paragraphs therein.   All  these
          objections were resolved to appellant's satisfaction in the court
          below.  None of them touched upon paragraph 17.

                                          6

no  right  to  play  the  quidnunc,  second-guessing  appellant's

          choice.   Refined  to  bare essence,  then,  a clearly  expressed

          condition precedent to the government's tentative obligation went

          unfulfilled.   Hence, the prosecutor  was not obligated to launch

          into a gratuitous spiel about Atwood's cooperation.  

                    At the expense of  belaboring the obvious, we also  add

          that,   whatever   additional   information   about   appellant's

          cooperation  might have  been imparted  at sentencing,  appellant

          acknowledges that the GSR would not have been altered.  Thus, the

          incremental  information  could  not   have  led  to  a  downward

          departure.  It  is nose-on-the-face plain that  the Agreement did

          not  obligate the  government  to move  for a  downward departure

          based on  appellant's cooperation.   And,  we have squarely  held

          that   a  sentencing  court  may  not  depart  on  the  basis  of

          substantial assistance (a synonym  for "cooperation") except when

          the government so requests.  See Amparo, ___ F.2d at ___ [slip op
                                       ___ ______

          at 11-12];  United States v. Drown, 942 F.2d 55, 56 n.2 (1st Cir.
                      _____________    _____

          1991);  Romolo, 937 F.2d at  23; LaGuardia, 902  F.2d at 1013-16;
                  ______                   _________

          see also U.S.S.G.    5K1.1 (a downward departure in  return for a
          ___ ____

          defendant's "substantial assistance" is available  "[u]pon motion

          of the government").  Thus, appellant's complaint was destined to

          self-destruct; whatever the prosecutor  did or did not contribute

          to the allocution, appellant received the most favorable sentence

          possible  under the circumstances    a sentence at  the bottom of

          the applicable GSR.

                                          IV
                                          IV
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7

Conclusion
                                      Conclusion
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                    We need  go no  further.   When, as  in this case,  the

          prosecutor  did exactly  what  the government  promised to  do, a

          claim  that the plea agreement  was breached will  not lie.6  See
                                                                        ___

          Oyegbola, ___  F.2d at ___ [slip  op. at 8]; Garcia,  954 F.2d at
          ________                                     ______

          17; Hogan, 862  F.2d at 389.  Finding no  cognizable error in the
              _____

          proceedings below, the conviction  and concomitant sentence  must

          be

Affirmed.
          Affirmed.
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               6The  rule,  of course,  is  not  ironclad.   Under  certain
          circumstances,  there  may  be  exceptions  for  instances  of  a
          prosecutor's  halfhearted compliance  with  the terms  of a  plea
          agreement, United States v. Brown, 500 F.2d 375, 377-78 (4th Cir.
                     _____________    _____
          1974),  or where  the prosecutor has  injected into  the dialogue
          "material  reservations  about   the  agreement   to  which   the
          government had committed  itself," Canada, ___ F.2d  at ___ [slip
                                             ______
          op. at 16], or  where "the government immediately took  away with
          the left hand what it had given with the right," United States v.
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          Voccola,  600  F. Supp.  1534, 1537  (D.R.I.  1985).   This case,
          _______
          however, does not implicate any of these exceptions.

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