USCA1 Opinion
United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
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No. 94-2071
UNITED STATES,
Appellee,
v.
CRAIG J. CLARK,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Paul J. Barbadoro, U.S. District Judge]
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Before
Stahl, Circuit Judge,
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Campbell, Senior Circuit Judge,
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and John R. Gibson,* Senior Circuit Judge.
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Kevin E. Buchholz with whom McDonough & Lindh, P.A. was on brief
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for appellant.
Peter E. Papps, First Assistant United States Attorney, with whom
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Paul M. Gagnon, United States Attorney, was on brief for appellee.
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May 18, 1995
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*Of the Eighth Circuit, sitting by designation.
STAHL, Circuit Judge. Defendant-appellant Craig J.
STAHL, Circuit Judge.
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Clark appeals from his sentence, claiming that the government
breached its plea agreement with him. Agreeing, we remand
for resentencing.
I.
I.
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BACKGROUND
BACKGROUND
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On June 1, 1994, Clark waived his right to
indictment and pleaded guilty to a two-count information
stemming from a kidnapping. Count I charged him with
conspiracy to interfere with commerce by threats or violence,
in violation of 18 U.S.C. 1951, and Count II charged him
with interference with commerce by threats or violence, also
in violation of 18 U.S.C. 1951. The written plea agreement
contained the following stipulation:
The Government agrees that it will not
oppose a three (3) level reduction in the
defendant's Adjusted Offense Level under
the Sentencing Guidelines, based upon the
defendant's prompt recognition and
affirmative acceptance of personal
responsibility for the offense.
After accepting Clark's guilty plea, the district
court ordered a presentence investigation and report to be
issued by the probation office. The Presentence
Investigation Report indicated that during the presentence
interviews of Clark's co-defendants, the probation officer
learned that, prior to the arraignment and the change-of-plea
proceedings, Clark had attempted to induce two of his co-
defendants to lie to the court and state that the kidnapping
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victim had been involved in the extortion scheme. Because of
this activity, the probation officer concluded that Clark had
attempted to obstruct justice and recommended a two-level
increase in his Adjusted Offense Level pursuant to U.S.S.G.
3C1.1. Defense counsel objected to the probation officer's
conclusions.
Prior to Clark's sentencing hearing, the government
submitted to the court a sentencing memorandum outlining
proposed guideline adjustments to be taken in light of
Clark's alleged obstruction of justice. The memorandum
contained a two-page discussion about whether Clark was
entitled to an acceptance-of-responsibility adjustment.
Clark objected to the government's sentencing memorandum,
contending that it breached the plea agreement. Defense
counsel filed a motion to withdraw Clark's plea, explaining
to the court that when the government breaches a plea
agreement, the court may either compel specific performance
on the plea agreement or allow the defendant to withdraw his
plea. The court denied Clark's motion to withdraw his plea,
stating first that the government had not breached the plea
agreement, second that it would not be influenced by what the
government recommended, and third that it would not consider
the acceptance-of-responsibility portion of the government's
sentencing memorandum. After denying the three-level
downward adjustment for acceptance of responsibility, the
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court imposed a two-level upward adjustment for obstruction
of justice and sentenced Clark to 188 months.
II.
II.
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DISCUSSION
DISCUSSION
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A. Standard of Review
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Clark and the government disagree as to the
appropriate standard of review, Clark claiming that our
review is de novo and the government, despite citing cases to
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the contrary in other parts of its brief, flatly stating that
it is for clear error. As we have previously acknowledged,
see United States v. Gonzalez-Perdomo, 980 F.2d 13, 16 n.2
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(1st Cir. 1992), in some cases we have stated that our review
is de novo, while in other cases we have stated that our
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review is for clear error. Compare id. at 16 (de novo);
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Kingsley v. United States, 968 F.2d 109, 114 (1st Cir. 1992)
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(de novo); United States v. Atwood, 963 F.2d 476, 478 (1st
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Cir. 1992) (de novo); United States v. Canada, 960 F.2d 263,
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269 (1st Cir. 1992) (de novo) with United States v. Tilley,
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964 F.2d 66, 71 (1st Cir. 1992) (clear error); United States
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v. Kurkculer, 918 F.2d 295, 298 n.5 (1st Cir. 1990) (clear
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error); Panzardi-Alvarez v. United States, 879 F.2d 975, 987
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(1st Cir. 1989) (clear error), cert. denied, 493 U.S. 1082
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(1990); United States v. Giorgi, 840 F.2d 1022, 1028 (1st
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Cir. 1988) (clear error); United States v. Gonzalez-Sanchez,
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825 F.2d 572, 578 (1st Cir.) (clear error), cert. denied, 484
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U.S. 989 (1987); United States v. Khoury, 755 F.2d 1071, 1073
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(1st Cir. 1985) (clear error). We take this opportunity to
clarify the appropriate standard of review and to explain why
the two different standards stated in many of these cases are
not in conflict.
Cases involving plea agreements allegedly breached
by the government present two separate issues for our
consideration, one factual, the other legal. First, there
are the factual questions of what the terms of the agreement
are and what the government's conduct was. See, e.g.,
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Giorgi, 840 F.2d at 1028-29 (looking to reasonable
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expectations of parties to determine whether ambiguous plea
agreement foreclosing prosecution for "any criminal acts
related to thefts or hijackings of vans" barred later
prosecution for arson or mail fraud) (emphasis eliminated);
accord Bemis v. United States, 30 F.3d 220, 223 (1st Cir.
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1994) (remanding to district court to make factual finding
whether government promised as part of plea agreement to
secure defendant's entry into witness protection program).
If disputed, these factual questions are to be resolved by
the district court, and we will review the district court's
determinations only for clear error. See Giorgi, 840 F.2d at
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1028. Second, there is the legal question of whether the
government's conduct breached the plea agreement. See, e.g.,
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Atwood, 963 F.2d at 479 (government did not breach plea
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agreement requiring it to offer its views on defendant's
cooperation at defendant's request when defendant did not so
request). Because whether the government's conduct
constituted a breach is a question of law, our review is
plenary. Id. at 478.
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Here, we are not faced with disputed facts. Thus,
we must determine only the legal question of whether the
government's undisputed conduct breached the plea agreement,
which we review de novo.
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B. Legal Principles
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In Santobello v. New York, 404 U.S. 257 (1971), the
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Supreme Court declared that "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."
Id. at 262. Because plea bargaining requires defendants to
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waive fundamental constitutional rights, we hold prosecutors
engaging in plea bargaining to "the most meticulous standards
of both promise and performance." Correale v. United States,
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479 F.2d 944, 947 (1st Cir. 1973). As we stated in
Kurkculer, "[t]he government must keep its promises or the
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defendant must be released from the bargain." 918 F.2d at
297.
We are guided in our interpretation of plea
agreements by general principles of contract law. See
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Atwood, 963 F.2d at 479; Giorgi, 840 F.2d at 1025. As we
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explained in Gonzalez-Sanchez,
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When a defendant has entered into a plea
agreement with the government, the court
must ensure that he receives what is
reasonably due him under the agreement.
Contractual principles apply insofar as
they are relevant in determining what the
government "owes" the defendant. If the
defendant lives up to his end of the
bargain, the government is bound to its
promises.
825 F.2d at 578 (footnotes omitted). See also United States
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v. Baldacchino, 762 F.2d 170, 179 (1st Cir. 1985) ("Though a
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matter of criminal jurisprudence, plea bargains are subject
to contract law principles insofar as their application will
insure the defendant what is reasonably due him.").
C. Did the Government Breach?
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We think that the government breached its plea
agreement in this case. As part of the consideration for
defendant's guilty plea, the government agreed not to oppose
a three-level reduction for acceptance of responsibility.
Nonetheless, the government effectively opposed such a
reduction with its sentencing memorandum, in which it stated:
While the government is cognizant of
th[e] fact that it agreed not to oppose a
three level downward departure for
acceptance [of responsibility] in the
plea agreement, it must be stated that
the Government was unaware of this
information indicative of obstruction at
the time of the plea negotiations.
Although the government can not now close
its eyes to the defendant's blatant
attempts to obstruct justice, it would
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suggest to the court that its prior
representations in the plea agreement
restrict a more vigorous argument on the
issue of the loss of an acceptance of
responsibility award. The government
relies on the court's sound discretion in
resolving this issue, although there
appears to be nothing "extraordinary"
about the present case that would bring
it within the narrowly drawn exception of
U.S.S.G. [3E1.1 application note 4].1
We hold that the government opposed an acceptance-
of-responsibility adjustment with this sentencing memorandum;
formal opposition was not necessary. Cf. United States v.
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Garcia, 698 F.2d 31, 37 (1st Cir. 1983) ("`A plea agreement
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is not an appropriate context for the Government to resort to
a rigidly literal approach in the construction of
language.'") (quoting United States v. Bowler, 585 F.2d 851,
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854 (7th Cir. 1978)); Canada, 960 F.2d at 269 ("While it can
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be argued that the government stopped short of explicitly
repudiating the agreement, Santobello prohibits not only
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explicit repudiation of the government's assurances, but must
in the interests of fairness be read to forbid end-runs
around them.") (quotation omitted). Despite stating that it
could not present "a more vigorous argument" because of the
plea agreement, the government made clear its position that
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1. U.S.S.G. 3E1.1 deals with adjustments for acceptance of
responsibility. Application note 4 provides: "Conduct
resulting in an enhancement under 3C1.1 (Obstructing or
Impeding the Administration of Justice) ordinarily indicates
that the defendant has not accepted responsibility for his
criminal conduct. There may, however, be extraordinary cases
in which adjustments under both 3C1.1 and 3E1.1 may apply."
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no reduction was appropriate. Cf. United States v. Voccola,
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600 F. Supp. 1534, 1539 (D.R.I. 1985) (Selya, J.) (finding no
breach when prosecutor "did not attempt to do by indirection
what he was barred from doing directly"). By stating that it
was unaware of the alleged obstruction at the time it entered
into the plea agreement, the government indicated that it
would not have made this plea agreement had it known then
what it knows now.2 The government's "references to the
agreement were grudging and apologetic," Canada, 960 F.2d at
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269, despite our rule that "it is improper for the prosecutor
to inject material reservations about the agreement to which
the government has committed itself," id. at 270. Cf. United
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States v. Tursi, 576 F.2d 396, 399 (1st Cir. 1978) (finding
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no breach where prosecutor "issued no equivocal comments").
Not only did the government suggest that it thought no
acceptance-of-responsibility adjustment was appropriate, it
also argued that there was nothing "extraordinary" about the
case to bring it within the U.S.S.G. 3E1.1 application note
4 exception allowing an acceptance-of-responsibility
adjustment even when there has been an obstruction of
justice.
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2. At no time has the government argued that it was released
from the plea agreement because Clark himself breached the
plea agreement by obstructing justice.
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In arguing that its sentencing memorandum did not
breach the plea agreement, the government relies on another
portion of the plea agreement, which reads:
The defendant also understands that the
Government and the United States
Probation Office will (a) advise the
Court of any additional, relevant facts
that are presently known or may
subsequently come to their attention; (b)
respond to questions from the Court; (c)
correct any inaccuracies in the pre-
sentence report; (d) respond to any
statements made by the defendant or his
counsel to a probation officer or to the
Court; and (e) may address the Court with
respect to an appropriate sentence to be
imposed in this case.
Based on this language, the government argues that its
sentencing memorandum "did not contain a request for relief,
but merely stated facts." We do not agree. While it is true
that the government had not only the ability but the duty to
draw facts to the court's attention, see Canada, 960 F.2d at
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270 n.7 ("It is necessary at all times that the government
`level' with the court as to the correct facts and
calculations relevant to guideline sentencing."); Voccola,
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600 F. Supp. at 1538 ("Under virtually all circumstances, the
government has the duty to disclose to the court pertinent
factual information in its possession."), we think the
government did more in this case. Rather than merely drawing
facts and law to the court's attention, or answering factual
or legal questions posed by the court, the government instead
indicated that it opposed an adjustment for acceptance of
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responsibility and effectively argued against it by stating
that this was not an "extraordinary" case.
Unquestionably, the government's promise not to
oppose an acceptance-of-responsibility adjustment was a
significant factor in defendant's decision to accept the
agreement. Thus, by opposing an acceptance-of-responsibility
adjustment, the government made a significant and deliberate
breach of the plea agreement with defendant. Therefore, the
district court's holding that the government did not breach
the plea agreement must be reversed.
D. Was the Breach Harmless?
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"[A] prosecutorial failure to fulfill a promise
or to make a proper promise is not rendered harmless because
of judicial refusal to follow the recommendation or judicial
awareness of the impropriety." Correale, 479 F.2d at 949.
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Thus, even if, as in this case, the sentencing judge
indicates that the prosecutor's breach had no effect on the
defendant's sentence, the defendant is still entitled to a
remedy.3 See Santobello, 404 U.S. at 262 (remanding for
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3. Of course, minor deviations from the plea agreement will
not mandate resentencing. This is because minor deviations
do not affect the consideration due the defendant under the
plea agreement. Cf. Santobello, 404 U.S. at 262 ("when a
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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
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fulfilled") (emphasis added); Panzardi-Alvarez, 879 F.2d at
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986 ("The government may not breach any term of a plea
agreement which induced the defendant to plead guilty.")
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(emphasis added). See Correale, 479 F.2d at 947 ("we do not
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remedy even though sentencing judge "stated that the
prosecutor's recommendation did not influence him and we have
no reason to doubt that"). As we explained in Correale,
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The reason [the government's breach
cannot be harmless] is obvious; it is the
defendant's rights which are being
violated when the plea agreement is
broken or meaningless. It is his waiver
which must be voluntary and knowing. He
offers that waiver not in exchange for
the actual sentence or impact on the
judge, but for the prosecutor's
statements in court. If they are not
adequate, the waiver is ineffective.
479 F.2d at 949.
In this case, despite finding no breach by the
government, the district court stated that it would not
consider the government's sentencing memorandum. That the
district court did not even consider the breaching material
(as opposed to just not being influenced by it) will not
defeat the need for Clark to be resentenced. We confronted a
similar situation in Kurkculer, in which the prosecutor
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initially suggested sentencing in accordance with the
presentence report but then, after learning that such
recommendation breached the plea agreement, withdrew that
recommendation and substituted the one promised in the plea
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go so far as to say that minor and harmless slips by
prosecutors will void a plea bargain"). In this case, the
government does not contest that its promise not to oppose an
acceptance-of-responsibility adjustment was part of the
consideration for Clark's guilty plea.
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agreement. We held that the defendant needed to be
resentenced, explaining,
The Court in Santobello nowhere suggested
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that a mere withdrawal of the offending
recommendation with substitution of the
agreed recommendation would have been a
sufficient remedy. While no such attempt
was made in Santobello, its futility is
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suggested by the Court's comment that "at
this stage the prosecution is not in a
good position to argue that its
inadvertent breach of agreement is
immaterial. . . . That the breach of
agreement was inadvertent does not lessen
its impact."
Kurkculer, 918 F.2d at 302 (quoting Santobello, 404 U.S. at
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262) (alteration in Kurkculer). Thus, even if the government
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had withdrawn its sentencing memorandum, Clark would still
have been entitled to a remedy. That the district court did
not consider the government's breaching sentencing memorandum
is irrelevant to the question of whether Clark is entitled to
a remedy.
E. Remedy
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In Santobello, the Supreme Court indicated that
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there are two ways to remedy the government's breach of a
plea agreement: giving the defendant "the opportunity to
withdraw his plea of guilty," or "specific performance of the
agreement." 404 U.S. at 263. In unusual circumstances, we
have also crafted other remedies. See Correale, 479 F.2d at
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950 (using equitable powers to remand with instructions to
impose a specific sentence because such sentence was the
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"only just remedy and the only one which could now
approximate specific enforcement of the agreement"). If
specific performance is a sufficient remedy, then the
defendant must be resentenced by a different judge.
Kurkculer, 918 F.2d at 298.
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The choice of remedy is normally left to the
discretion of the sentencing court. See Santobello, 404 U.S.
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at 263. This court, however, has "repeatedly expressed a
preference for specific performance of the agreement by
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resentencing before a different judge rather than vacating
pleas," Kurkculer, 918 F.2d at 300 (emphasis in original),
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for "[o]nce that is done, a defendant `will obtain all he
says he was promised,'" id. (quoting McAleney v. United
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States, 539 F.2d 282, 286 (1st Cir. 1976)).
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Although Clark sought to withdraw his plea prior to
sentencing, he does not do so on appeal. Rather, he requests
only specific performance. In similar cases, we have held
that "specific performance by resentencing is all that is
required," id. at 302, for
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[s]pecific performance . . . is a lesser
burden on the government and defendant.
Further, permitting a judge to vacate a
plea over defendant's objection on breach
by the prosecution allows the government
to back out of its agreement at will and
obtain a new trial. Given nothing more
than the prosecutor's breach, the
circumstances do not "require" a new
trial.
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Id. See also Canada, 960 F.2d at 271 ("Here Canada seeks and
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we grant [specific performance]. We do not find that the
circumstances of this case demand the greater remedy of a
withdrawn plea absent defendant's request for such relief.").
Thus, we remand this case with orders that Clark be
resentenced by a different judge.
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III.
III.
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CONCLUSION
CONCLUSION
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Because we find that the government breached its
plea agreement with Clark, we remand for resentencing before
another judge. In light of our holding that Clark must be
resentenced, we need not reach Clark's other assignments of
error.4
Remanded for further proceedings in accordance with
Remanded for further proceedings in accordance with
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this opinion.
this opinion.
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4. Clark argues that the district court erred in not
construing certain statements in the light most favorable to
him, in finding that he obstructed justice, and in applying
the preponderance-of-the-evidence standard instead of the
reasonable-doubt standard to determine whether Clark
obstructed justice.
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