United States v. Bernard

• Court: Court of Appeals for the Third Circuit
• Decided: June 29, 2004
• Docket: 03-1378
• Status: Published

Opinion

Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit

6-29-2004

USA v. Bernard Precedential or Non-Precedential: Precedential

Docket No. 03-1378

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Recommended Citation "USA v. Bernard" (2004). 2004 Decisions. Paper 532. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/532

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PRECEDENTIAL 5500 Veterans Building, Suite 260 Charlotte Amalie UNITED STATES COURT OF St. Thomas USVI, 00802-6924 APPEALS FOR THE THIRD CIRCUIT Counsel for Appellee __________ __________ No. 03-1378 __________ OPINION OF THE COURT __________ UNITED STATES OF AMERICA, NYGAARD, Circuit Judge. vs. Rose Bernard pleaded guilty to ROSE HAJAY BERNARD, possession of a false identification document under a plea agreement that Appellant. dropped much more serious drug charges. __________ She claims on appeal that the District Court erred by using the sentencing ON APPEAL FROM THE DISTRICT guidelines that she agreed should apply. COURT OF THE VIRGIN ISLANDS Guided by F ED. R. C RIM . P. 11(c)(1)(C), (D.C. No. 01-cr-00233-2) we will hold Bernard to her bargain and District Judge: The Honorable affirm the District Court *s sentence. Thomas K. Moore I. __________ Rose Bernard is a Liberian citizen ARGUED DECEMBER 10, 2003 with permanent resident status in the United States. While going through BEFORE: NYGAARD, BECKER, and customs at the airport in St. Thomas, U.S. STAPLETON, Circuit Judges. Virgin Islands, she used a forged birth certificate that indicated she was born in (Filed: June 29, 2004) New York, falsely declared on a customs form that she was a U.S. citizen, and Douglas J. Beevers, Esq. (Argued) attempted to take through the customs Office of Federal Public Defender checkpoint four liquor bottles filled with P.O. Box 1327, 51B Kongens Gade more than five kilograms of liquid cocaine. Charlotte Amalie Bernard was arrested along with St. Thomas USVI, 00804 two co-defendants, and indicted for Counsel for Appellant conspiracy to possess cocaine with intent to distribute, conspiracy to import cocaine Anthony J. Jenkins, Esq. (Argued) into the United States, and four charges Office of United States Attorney related to using a fraudulent birth United States Courthouse certificate and making a false customs Bernard now contends that the declaration. District Court erred by applying U.S.S.G. § 2D1.1, a guideline for drug offenses, in On the fourth day of her trial, near sentencing her for possession of a false the conclusion of the government *s case, identification document. The District she negotiated a plea agreement. Bernard Court applied that guideline using the agreed to plead guilty to Court Five of the cross-reference in § 2L2.2(c), which indictm ent, possession of a f alse directs that if the “defendant used a identification document in violation of 18 passport or visa in the commission or U.S.C. § 1028(a)(4), (b)(1)(A)(ii) and attempted commission of a felony offense” (b)(3)(A), and in excha nge, th e the Court should apply § 2X1.1, which in government dropped all other charges. turn directs the Court to use the guidelines Bernard also explicitly agreed to the for the underlying felony offense. In sentencing enhancement contained in 18 Bernard *s case, the underlying offense was U.S.C. § 1028(b)(3)(A), which is drug trafficking, the sentencing guidelines applicable when the offense is committed for which are found in § 2D1.1. to facilitate a drug trafficking crime. She also agreed to be sentenced under the Bernard argues that because she guidelines that were applicable to the used only a fraudulent birth certificate, and dismissed drug charges. not a “passport or visa” as required by § 2L2.2(c), the District Court erred by A p p l y in g the drug -relate d applying this cross-reference. She also enhancement under § 1028(b)(3)(A) contends that because the stipulation she increased Bernard *s maximum sentence made in her plea agreement did not from 15 years to 20 years.1 Bernard was specifically state that she had committed a ultimately sentenced to 46 months in drug offense, it was insufficient to support prison, a sentence at the bottom of the 46- the guidelines for drug offenses. to-57-month range recommended by the sentencing guidelines applicable under the We exercise plenary review over plea agreement. the question of whether the terms of a plea agreement have been violated. United States v. Rivera, 357 F.3d 290, 294 (3d 1 Cir. 2004). We also exercise plenary Bernard incorrectly states in her review over the interpretation of the brief that the effect of the enhancement sentencing guidelines. United States v. was to change the maximum sentence McKenzie, 193 F.3d 740, 742 (3d Cir. from 1 year to 20. As the government 1999). We review for plain error, points out, that is clearly not the case, however, when a defendant did not object since 18 U.S.C. § 1028(b)(1)(A)(ii) to a purported error before the sentencing provides for a 15-year maximum court. United States v. Couch, 291 F.3d sentence for possession of a forged birth 251, 252-53 (3d Cir. 2002). To establish certificate.

2 plain error, a defendant must prove that 1) Bernard *s agreement to certain sentencing the court erred; 2) the error was obvious stipulations, the government*s attorney under the law at the time of review; and 3) agreed to drop the charges of drug the error affected the defendant*s importation and trafficking, by far the substantial rights. Johnson v. United most serious charges in the indictment. It States, 520 U.S. 461, 467 (1997). If these is clear from the record that the conditions are met, then we may exercise government would not have accepted the our discretion to notice the error if it plea without these sentencing stipulations. “seriously affect[s] the fairness, integrity, The record of the plea hearing or pub lic repu tation o f judic ial demonstrates that Bernard *s attorney was proceedings.” Id. (internal quotation marks well aware of the “error” about which he and citations omitted) (alteration in now complains. In fact, he raised the issue original). Because we conclude that the before the Court, but wh en the District Court did not err, we do not reach government’s attorney threatened to the other prongs of the Johnson plain error remove the plea offer, he explicitly test. stipulated to the application of § 2L2.2(c). II. As the record indicates, this stipulation was thoroughly discussed, and specifically We need not, and do not, decide agreed to by Bernard. whether the District Court would have erred had it applied the cross-reference Mr. Jenkins: [Deputy U.S. under U.S.S.G. § 2L2.2(c) without the plea Attorney]: And just to agreement. That is not the issue here. In further clarify, the cross- the context of this case, the government reference referred to in the and the defense stipulated in the plea plea agreement is United agreement that the cross-reference should States Sentencing apply. The sole issue before us on appeal Guidelines 2L2.2(c), where is whether the District Court had the it speaks of a cross authority to accept this plea agreement, reference. . . . which stipulates to a factor or sentence that falls outside the sentencing guidelines range, and absent the agreement, would The Court: Alright. Do not apply. you agree, Mr. Beevers? Bernard entered her guilty plea mid-trial, after the government had nearly Mr. Beevers [Bernard *s concluded its case against her and Attorney]: Almost. My presented, by her attorney* s own position is it would be for admission, “very strong evidence” that the Court to determine, Bernard had been involved in a drug since the Guidelines don*t conspiracy. S.A. at 29. In exchange for

3 expressly say a birth effect would be that it certificate, the guidelines would be, sentencing would would only go up after be as – under the Guidelines Attorney Jenkins would for drug trafficking offense make a motion for upward . . . . [T]he Guidelines departure to invoke that would be the same if she rule. had directly pled to the drug trafficking offense. That*s our understanding . . . [a]nd And I would concede that he I*ll waive any argument that has very strong evidence at a specific motion would be this point that the higher required if you, if you need enhancement – but that it, or I *ll actually make the would ultimately be your motion, if you need it. d e c i s io n , w h e t h e r t o enhance. The Court: Well, you *re stipulating to it, as I Mr. Jenkins: No, no, that*s understand. not the deal. The deal is that you*re going to stipulate that as pursuant to 2L2.2 . . . or Mr. Beevers: Right. we don *t have a plea agreement . . .We *re not going to argue about that. The Court: Do you That*s going to be a understand all that, Ms. stipulation. Bernard, the net effect of what that is? (Defendant conferring with counsel.) Mr. Beevers: In that case, we are stipulating that the higher Guideline would Defendant Bernard: Yes, sir. apply, and –

The Court: In essence, it*s The Court: What *s the net what you initialed on effect? Paragraph 8 on the plea application, although you*re not pleading to a . . . drug Mr. Beevers: The net trafficking offense, the

4 sentencing can be calculated exchange for these benefits, and as part of in accordance, as if you had. the plea agreement, she stipulated to the Do you understand that? applicability of U.S.S.G. § 2L2.2(c). To now ignore that stipulation and not apply § 2L2.2(c) would contravene the clear intent Defendant Bernard: Yes, sir. of both parties in entering into the plea agreement. S.A. 29-31. III. On this record, there is no reason to doubt that the agreement to apply the § Having concluded that the 2L2.2(c) cross-reference was a tactical agreement that § 2L2.2(c) would be decision that was designed to, and in fact applied is binding, we must determine did, benefit Bernard significantly. As a whether the District Court could use the result of the agreement, the government stipulated guideline for sentencing. dropped two drug charges that would have Federal Rule of Criminal Procedure each carried mandatory minimum 11 regulates plea agreements, and sentences of five years, in exchange for a establishes that in return for a guilty plea, plea to a far less serious crime without a a government attorney may agree to mandatory minimum sentence.2 dismiss other charges, make sentencing Bernard incorrectly characterizes recommendations, or “agree that a specific the issue in this case as a “failure to object sentence or sentencing range is the to the pre-sentence report” and argues that appropriate disposition of the case, or that she “was not trying to receive an a particular provision of the Sentencing unlawfully high sentence.” Appellant*s Guidelines, or policy statement, or Reply Br. at 8. What Bernard was trying sentencing factor does or does not apply.” to do is clear – reach a compromise that would result in a lower sentence than if she were convicted on all counts, would consequences of the conviction to his reflect a less-serious conviction on her client. He explained that she had not criminal history, and would leave open the lived in her native Liberia since she was possibility of avoiding deportation.3 In five years old, and that the prospect of avoiding deportation was the motivating force behind the structure of the plea 2 It is worth noting that Bernard agreement. In fact, because of the fear of was ultimately sentenced to fewer than deportation, Bernard had halted her five years. initial cooperation with police, and therefore forfeited the possibility of a 3 During the sentencing hearing, significant downward departure for Bernard *s attorney emphasized the providing substantial assistance to the importance of the immigration prosecution. S.A. at 59-60.

5 F ED. R. C RIM . P. 11(c)(1)(C).4 The rule not accept the sentencing agreement, then f u r t h e r p r o v i d e s t h a t “s u c h a under Rule 11(c)(5)(B), the defendant recommendation or request binds the court must be allowed to withdraw her guilty once the court accepts the plea plea. agreement.” Id.5 If the District Court does This Rule disposes of the case,6 requiring us to hold that a sentencing court 4 This version of Rule 11, amended has the authority to accept a plea in 1999, was applicable at the time of agreement stipulating to a sentencing Bernard *s plea and sentence. factor or a provision of the sentencing guidelines that otherwise would not apply, 5 Rule 11(c)(1) contemplates three or specifying a sentence that falls outside possible types of plea agreements, two of the applicable guidelines range. Once the which – found in subsections (B) and (C) District Court has accepted such an – involve an agreement with respect to agreement, it is binding. the applicability of a particular provision This issue does not often come up of the sentencing guidelines. It is clear on appellate review, apparently because that the government and Bernard entered the parties are unlikely to appeal the into a Rule 11(c)(1)(C), as opposed to consequences of a plea agreement to Rule 11(c)(1)(B), plea agreement. Under which they both consented, and because Rule 11(c)(1)(B), a government attorney the law restricts appeals from agreed-upon may “recommend, or agree not to oppose the defendant*s request, that a particular sentence or sentencing range is Accordingly, we write in the context of a appropriate or that a particular provision Rule 11(c)(1)(C) plea agreement, which, of the Sentencing Guidelines, or policy as we have noted, is binding upon a statement, or sentencing factor does or District Court once accepted. does not apply.” Id. However, unlike a 6 Rule 11(c)(1)(C) agreement, a Rule Even prior to the current 11(c)(1)(B) agreement “does not bind the amendment to Rule 11, we had court.” F ED. R. C RIM . P. 11(c)(1)(B). interpreted Rule 11 to allow plea agreements that bargain for departures The record makes clear that the from the sentencing guidelines. United parties did not agree that the government States v. Gilchrist, 130 F.3d 1131, 1134 would merely recommend application of (3d Cir. 1997). In Gilchrist, we the cross-reference provision in U.S.S.G. established that once the District Court § 2L2.2(c) under F ED. R. C RIM . P. accepts a plea that is conditioned upon an 11(c)(1)(B), but instead, as noted above, agreement on sentence, that plea agreed to enter into a binding agreement agreement “binds the district court whereby Bernard would be sentenced notwithstanding departures from the under the cross-reference provision. applicable guidelines.” Id. at 1134.

6 sentences. See 18 U.S.C. § 3742(c). The statements that accompany the sentencing best discussion of the issue is found in guidelines restate this rule, directing that a United States v. Goodall, 236 F.3d 700, court may only accept a plea agreement 703-05 (D.C. Cir. 2001). We agree with mandating a particular sentence if the the Goodall Court*s conclusion that Rule agreed sentence “is within the applicable 11 “plainly countenances agreed-upon guideline range” or it “departs from the sentences falling outside of the otherwise applicable guideline range for justifiable applicable Guidelines range.” Goodall, reasons.” U.S.S.G. § 6B1.2(c). Thus, there 236 F.3d at 705. In allowing the parties to is no doubt that “the Guidelines bind agree on a specific sentence, or that judges and courts in the exercise of their particular provisions of the guidelines do uncontested responsibility to pass sentence or do not apply, the Rule clearly in criminal cases.” Stinson v. United contemplates agreements on sentences that States, 508 U.S. 36, 42 (1993) (quoting could not be reached by directly applying Mistretta v. United States, 488 U.S. 361, the guidelines. F ED R. C RIM . P. 391 (1989)). 11(c)(1)(C). The Rule further provides Because Rule 11 and the sentencing that once a plea agreement with a guidelines present such a conflict, we must sentencing stipulation is reached between decide which of them will prevail. See the parties and accepted by the Court, it Goodall, 236 F.3d at 706-08 (Randolph, J., must be enforced at sentencing. Id. concurring) (providing a thorough We also agree with the conclusion discussion of this conflict). The of Judge Randolph, concurring in Goodall. supersession clause applicable to Rule 11 Judge Randolph noted that this portion of furnishes the answer, directing that “laws Rule 11 seems to be in tension with in conflict with such rules shall be of no provisions that make the sentencing further force or effect after such rules have guidelines binding on the federal courts. taken effect.” 28 U.S.C. § 2072(b). The See Goodall, 236 F.3d at 706 (Randolph, J. relevant portion of Rule 11(c) was added concurring). In particular, the federal in 1999, after the last substantive change sentencing statute provides that a to the relevant language in 18 U.S.C. § sentencing court “shall impose a sentence 3553. As a result, we conclude, as did of the kind, and within the range [set by Judge Randolph in Goodall, that the the sentencing guidelines] unless the court provisions of Rule 11(c) take precedence, finds that there exists an aggravating or and that a sentencing court may accept mitigating circumstance of a kind, or to a plea agreements in which the parties degree, not adequately taken into stipulate to sentences, or sentencing c o n si d e ration b y the S enten cin g factors, that would otherwise contravene Commission in formulating the guidelines the sentencing guidelines. Goodall, 236 that should result in a sentence different F.3d at 708 (Randolph, J., concurring). from the one described.” 18 U.S.C. § It is axiomatic under Rule 11 that 3553(b) (emphasis added). The policy

7 once a court accepts such an agreement, it IV. must be en force d at sen tencing. Finally, Bernard contends that the Therefore, we will affirm the District District Court violated an additional Court*s application of the U.S.S.G. § sentencing guidelines provision addressing 2L2.2(c) cross-reference to Bernard *s circumstances under which a court may sentence. Regardless of whether the cross- utilize, pursuant to a plea agreement, a reference would have been properly sentencing guideline other than the one applied in the absence of the plea applicable to the offense of conviction. agreement, the District Court was under an The sentencing guidelines “describe a obligation to apply the provision after nine-step process by which to arrive at a accepting the terms of Bernard *s plea. To sentencing range.” Watterson v. United hold otherwise would be inequitable States, 219 F.3d 232, 235 (3d Cir. 2000). because it would allow Bernard to get the Under the first step of that process, benefits of her plea bargain, while evading according to U.S.S.G. § 1B1.1(a), the the costs. M oreover,”[p]lea agreements District Court “first selects the offense are contractual and therefore are to be guideline section applicable to the offense analyzed under contract law standards,” of conviction.” Watterson, 219 F.3d at Gilchrist, 130 F.3d at 1134, and contract 235. In doing so, the guidelines instruct a law would not support such a result.7 district court to

7 [d]etermine the offense We note that even if we agreed guideline section in Chapter with Bernard *s argument, we could not Two (Offense Conduct) grant the relief she requests. If the applicable to the offense of provisions of a plea agreement are conviction (i.e., the offense accepted by a court, but later found to be conduct charged in the invalid, the proper remedy is not to count of the indictment or impose a sentence in violation of the plea information of which the agreement, but to allow the defendant to defendant was convicted). withdraw the guilty plea and either negotiate a new agreement, or proceed to trial. See United States v. Barnes, 83 sentence unilaterally in such cases, but F.3d 934, 941 (7th Cir. 1996) (“If we rather should withdraw its acceptance of rule that some provision of the plea the plea agreement”) (internal quotation agreement is invalid, we must discard the marks and citation omitted); see also entire agreement and require [the Gilchrist, 130 F.3d at 1134 (holding that defendant] and the government to begin if a plea agreement is breached, the their bargaining over again.”); Mukai, 26 district court may either grant specific F.3d at 956 (“[I]f the court later finds the performance or allow the defendant to disposition in the plea agreement withdraw the plea). objectionable it should not reduce the

8 However, in the case of a U.S.S.G. § 1B1.2(a).8 She then argues plea agreement (written or made orally on the record) 8 Bernard actually cites to U.S.S.G. containing a stipulation that § 1B1.2(c), which contains language specifically establishes a similar to § 1B1.2(a) but applies to more serious offense than situations where a defendant has the offense of conviction, “stipulat[ed] to the commission of determine the offense additional offense(s).” U.S.S.G. § guideline section in Chapter 1B1.2, app. note 3 (emphasis added). As Two applicable to the Application Note 3 to U.S.S.G. § 1B1.2 stipulated offense. explains, however, U.S.S.G. § 1B1.2(c) U.S.S.G. § 1B1.2(a). applies to situations where the defendant has stipulated to facts that establish the Ordinarily, under U.S.S.G. § 1B1 commission of additional offenses, and .2(a), a defendant is to be sentenced requires that under such circumstances according to the guideline “applicable to the guidelines are to be the offense of the conviction,” id., which applied as if the defendant in this case would be, inter alia, U.S.S.G. had been convicted of an § 2L2.2. However, “[i]n a case in which additional count for each of the elements of an offense more serious the offenses stipulated. For than the offense of conviction are example, if the defendant is established by a plea agreement,” U.S.S.G. convicted of one count of § 1B1.2(a) provides a “limited exception” robbery but, as part of a to that rule, and requires that “the plea agreement, admits to guideline section applicable to the having committed two stipulated offense is to be used.” U.S.S.G. additional robberies, the § 1B1.2, app. note 1. guidelines are to be applied While U.S.S.G. § 2L2.2 applies to as if the defendant had Bernard because of her conviction under been convicted of three 18 U.S.C. § 1028, she argues that the counts of robbery. cross-reference in this provision, requiring U.S. S .G. § 1B1.2, app. note 3. No the District Court to apply, in this case, the “additional” offenses of conviction are at drug trafficking guideline found at issue in this case (e.g., an additional U.S.S.G. § 2D1.1, did not apply because instance of possession of a fraudulent U.S.S.G. § 2L2.2(c)*s “passport or visa” document). Instead, Bernard *s argument requirement was not met. Therefore, she is based upon U.S.S.G. § 1B1.2(a), contends, the District Court could only which provides for imposition of a have applied the drug trafficking guideline guideline other than the one applicable to by way of the limited exception found in the offense of conviction where “the elements of an offense [such as drug

9 that this exception would not apply to her C RIM . P. 11(c)(1)(C) agreement indicating because she did not stipulate to any facts that a specific sentencing guideline does or that would establish the elements of any does not apply is, once accepted, binding offense for which the drug trafficking upon the District Court. For the same guideline, U.S.S.G. § 2D1.1, would apply. reason, we have no occasion to address See U.S.S.G. § 1B1.2, app. note 1 whether Bernard *s plea agreement is (explaining that U.S.S.G. § 1B1.2(a) sufficiently specific to warrant a sentence applies “[i]n a case in which the elements under U.S.S.G. § 1B1.2(a) based on a of an offense more serious than the offense guideline other than the one applicable to of conviction are established by a plea the offense of conviction. It necessarily agreement”) (emphasis added); Braxton v. follows from our conclusion in Section III United States, 500 U.S. 344, 349-50 that, under F ED. R. C RIM . P. 11(c)(1)(C), (1991) (applying an earlier version of Bernard *s agreement to be sentenced under U.S.S.G. § 1B1.2 and looking to see the cross-reference provision of U.S.S.G. whether a defendant had stipulated to facts § 2L2.2(c) is alone sufficient to validate that “specifically established” the elements her sentence. of the offense the District Court sought to V. sentence the defendant under); see also United States v. Nathan, 188 F.3d 190, 201 In sum and for the reasons detailed (3d Cir. 1999) (“the text of section above, we will affirm the judgment. 1B1.2(a) . . . indicates that a statement is a ‘stipulation * only if: (i) it is part of a defendant*s written plea agreement; (ii) it ______________ is explicitly annexed thereto; or (iii) both the government and the defendant explicitly agree at a factual basis hearing that the facts being put on the record are stipulations that might subject a defendant to the provisions of section 1B1.2(a)”). As indicated above, we have not addressed the “passport or visa” argument because of our holding that a F ED. R.

trafficking] more serious than the offense of conviction [such as possession of a false identification document] are established by a plea agreement.” U.S.S.G. § 1B1.2, app. note 1.