United States v. Connolly

• Court: Court of Appeals for the First Circuit
• Decided: April 4, 1995
• Docket: 94-2083
• Status: Published

Opinion

USCA1 Opinion

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

        No. 94-2083

                              UNITED STATES OF AMERICA,

                                      Appellee,

                                          v.

                                 WALTER F. CONNOLLY,
                                    a/k/a "SNAKE",

                                Defendant, Appellant.

                                 ____________________

                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                              FOR THE DISTRICT OF MAINE

                     [Hon. D. Brock Hornby, U.S. District Judge]
                                            ___________________

                                 ____________________

                                        Before

                                Boudin, Circuit Judge,
                                        _____________

                           Campbell, Senior Circuit Judge,
                                     ____________________

                              and Stahl, Circuit Judge.
                                         _____________

                                 ____________________

            Jean-Claude  Sakellarios   with  whom   David  I.   Bailinson  and
            ________________________                _____________________
        Sakellarios & Associates were on brief for appellant.
        ________________________
            Margaret  D.  McGaughey, Assistant  United  States  Attorney, with
            _______________________
        whom Jay  P.  McCloskey,  United  States  Attorney,  and  Jonathan  R.
             __________________                                   ____________
        Chapman,  Assistant  United States  Attorney,  were on  brief  for the
        _______
        United States.

____________________

                                    April 4, 1995
                                 ____________________



BOUDIN, Circuit Judge.  On December  21, 1993, Walter F.
                         _____________

            Connolly  pleaded  guilty  to  two  counts  of  a  four-count

            indictment.   The  indictment related  to the  1992 entry  by

            Connolly and  others into  a  home in  Cornish, Maine,  where

            Connolly  and his  confederates  believed they  would find  a

            cache  of marijuana  to steal.   Based  on a  plea agreement,

            Connolly pled guilty  to one count  of conspiring to  possess

            marijuana with intent to distribute,  21 U.S.C.    841,  846,

            and one count of carrying a firearm during and in relation to

            a drug trafficking crime, 18 U.S.C.    924(c).

                 The presentence report dated February 22, 1994, proposed

            that  the amount of drugs attributed to the conspiracy be set

            at 145.1 kilograms (just under 320 pounds); the base  offense

            level is 26 for 100 to  400 kilograms of marijuana.  U.S.S.G.

               2D1.1(c)(7).     The  report   recommended  a   four-level

            enhancement  because  Connolly  was  a  leader or  organizer,

            U.S.S.G.      3B1.1(a),  and  a   three-level  reduction  for

            acceptance of responsibility, U.S.S.G.   3E1.1.  Connolly had

            only one criminal history  point, based on a  Florida assault

            conviction,  but also  19  other charges  or convictions  not

            counted because of age or other circumstances.

                 The  government  moved  for  an   upward  departure  for

            uncounted criminal  history.   U.S.S.G.   4A1.2.   Connolly's

            counsel countered the government's  motion by saying that the

            earlier prosecutor  who negotiated the plea  had promised not

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to  move  for an  upward departure.   Connolly  filed various

            objections to  the presentence  report, moved for  a downward

            departure  based  on diminished  capacity,  and  sought as  a

            witness the  homeowner whose  house  had been  invaded.   The

            district  court found  that  the  homeowner's  testimony  was

            irrelevant because no marijuana had been found and  the issue

            was what Connolly had believed would be found.  

                 After a  delay to determine what  the earlier prosecutor

            had said, the district court sentenced Connolly on October 3,

            1994.    On  the  issue  of  drug  quantity,  the  government

            presented  testimony from an investigator who had interviewed

            other cooperating defendants; according to the investigator's

            reports  of his  interviews, the  defendants had  expected to

            find  at least  eight  40-pound bags  of marijuana,  although

            higher figures  were also  reported.  Connolly  testified and

            denied  expecting that any marijuana  would be found; he said

            that  he had expected  the drugs to  be gone and  that he had

            participated only in the hope of finding money.

                 The  government  continued  to   press  for  an   upward

            departure based  on uncounted criminal history,  arguing that

            no promise had  been made  by the earlier  prosecutor not  to

            move for an upward  departure.  Defense counsel who  had been

            involved in  the plea negotiations reported  that the earlier

            prosecutor had  said, "you're lucky  we're not asking  for an

            upward  departure," and  then  repeated, when  a protest  was

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made,  "we're not going to  do that."   Counsel also reported

            that   the  earlier  prosecutor   had  also   made  guideline

            computations that showed no such departure.

                 The district court then found that the relevant quantity

            of marijuana was 145.1  kilograms, reflecting the amount that

            the  conspirators  had expected  to  steal;  that the  upward

            adjustment of four  levels for leadership, and a downward one

            of three  levels for acceptance of  responsibility, were both

            proper; and  that a downward departure sought by Connolly for

            substance  abuse  was not  warranted.   This  resulted  in an

            adjusted offense level of 27 for count I.

                 As  to  criminal  history,  the  court  found  that  the

            government had not promised to refrain from seeking an upward

            departure.  The  court also said that it "would  in any event

            have contemplated  departing upward .  . . if  the government

            had not so  requested."  The court found that Connolly had an

            extensive criminal history reflecting "a lifelong pattern  of

            criminality."    The  court  also found  that  a  17-year-old

            burglary  conviction, although  remote  in  time,  should  be

            counted  under U.S.S.G.    4A1.2  because  it was  similar in

            nature to the crime  of conviction.  This added  three points

            to Connolly's criminal history, placing him in category III.

                 The  resulting guideline range for count I was 87 to 108

            months.    The  court  imposed  a  sentence  of  100  months,

            deducting  time  already  spent  in pretrial  custody.    The

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statutory  minimum  sentence  of  60  months,  to  be  served

            consecutively to the  count I sentence, was imposed  on count

            II.  18  U.S.C.   924(c).  Connolly has  now appealed to this

            court.  

                 Connolly's first  challenge is  to the district  court's

            upward departure based on criminal history.  The first of two

            separate  arguments is  that the  government's motion  for an

            upward departure was  a breach  of the plea  agreement or  at

            least the earlier prosecutor's promise that no such departure

            would  be sought.   We  assume arguendo  the accuracy  of the
                                           ________

            defense's  description  of  what  the  prosecutor  said;  two

            lawyers so testified and the government did not squarely deny

            it.   Still,  it is difficult  to regard that  statement as a

            part of the plea bargain because  of the language of the plea

            agreement itself.

                 The   agreement  explicitly   sets  forth   the  various

            obligations of  the parties, specifies  that the government's

            commitment  is to  drop  two  other  counts,  and  says  that

            "Defendant  understands that  there are  no further  or other

            promises or agreements, either express or implied, other than

            those  contained in this Agreement and that none will be made

            except  in  writing and  signed  by all  parties."   Further,

            neither Connolly nor his counsel  referred to an oral promise

            by the government not to move  to depart when, at the Rule 11

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hearing,  the  district  court  inquired  whether  any  other

            promises had been made.

                 What we have, therefore,  is a prosecutor's oral comment

            that might or might not be taken as a promise.  But, if taken

            as a promise,  it was not included in a later filed agreement

            that  purported to be a complete  integration of all promises

            made by the government.  Reading the document in full, it  is

            hard to  know what  more a  prosecutor could  do to write  an

            agreement that negated promises other than those set forth in

            the document.   Further, the defense  thereafter confirmed in

            open court that no  unwritten promises were part of  the plea

            bargain.

                 Absent special circumstances, a defendant--quite as much

            as the government--is bound by  a plea agreement that recites

            that it is a complete statement of the  parties' commitments.

            We have said  that there  may be exceptions  to this  general

            rule in unusual cases,  Bemis v. United States, 30  F.3d 220,
                                    _____    _____________

            222 (1st  Cir. 1994),  but Connolly  has  pointed to  nothing

            unusual in this case.  The earlier oral representation is not

            offered  to  explain  but  rather  to  contradict  the  later

            writing.   Nor  is  there any  basis  here for  charging  the

            government with deliberate misconduct.

                 In  some  cases,  earlier  oral  discussions   with  the

            prosecutor may be perfectly legitimate evidence to  interpret

            or clarify later  written statements.   This appears to  have

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been  the case  in  In re  Arnett, 804  F.2d 1200  (11th Cir.
                                _____________

            1986),  cited to us by  Connolly.  In  Arnett, the prosecutor
                                                   ______

            told the defendant orally that the government had no interest

            in  forfeiting  his  farm.    The  resulting  plea  agreement

            provided  for the defendant to forfeit $3,000 found on him at

            the time of  his arrest.   The Eleventh  Circuit held that  a

            later  effort by  the government  to forfeit  the farm  was a

            breach of the bargain.

                 The court  in Arnett  reasoned that the  specific $3,000
                               ______

            forfeiture provision in the agreement gave the defendant some

            basis in the  document for  thinking that this  was the  only

            forfeiture to be sought, at least when the document was taken

            in  the context  of  the earlier  discussion.   If  the  plea

            agreement were read  as the defendant claimed  to read it--to

            mean  that  forfeiture was  limited  to  $3,000--then defense
                                        _______

            counsel  arguably  had  reason  to  think  that  no  separate

            reference to the farm was required in  the document or in the

            Rule 11 colloquy.

                 In this  case, we  do not  see how  any language in  the

            written  agreement  can  be  construed,  or  even  reasonably

            misconstrued,  as a promise by the government not to move for

            a  departure.   The  agreement did  not  commit anyone  as to

            sentencing recommendations; indeed, it  specifically provided

            that  each side  was  free to  petition for  an "appropriate"

            sentence.   The prosecutor's sample guideline calculation was

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not  a   part  of   the  agreement,  and   such  illustrative

            calculations  appear to be commonplace.  In sum, it would not

            be reasonable to read the agreement to establish, or the Rule

            11 colloquy to preserve,  a promise by the government  not to

            move for a departure.

                 It  is worth adding that in this case, unlike Arnett, we
                                                               ______

            do  not have  an apparent  threat of  unfairness.   While the

            forfeiture  in Arnett was  ultimately in  the control  of the
                           ______

            prosecutor, the  departure decision in this case lay with the

            district court.  The  district judge said that he  would have

            considered an upward departure based on criminal history even

            if the government had  never raised the subject.   The nature

            of  Connolly's record,  yet to  be recounted,  amply explains

            this  sentiment.   Further, the  presentence report  proposed

            that the district court consider such a departure.

                 Under ordinary rules these facts might also suggest that

            if  the government did  make and  break an  explicit promise,

            that breach could still  be deemed harmless.  The  government

            urges this as an alternative ground  for affirmance, but does

            not try to square  its position with Santobello v.  New York,
                                                 __________     ________

            404  U.S. 257 (1971), which  appears to remain  the law.  See
                                                                      ___

            United States v. Canada,  960 F.2d 263, 271 (1st  Cir. 1992).
            _____________    ______

            Compare Kingsley  v. United  States, 968  F.2d 109,  115 (1st
            _______ ________     ______________

            Cir. 1992).  We leave  this issue for another day  and decide

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this case on the ground that the government did not break any

            promise to which it was committed by the final agreement.

                 In a  related argument  Connolly says that  the district

            court erred  on the  merits  in departing  based on  criminal

            history.   Connolly's record of criminal conduct, convictions

            and  pending charges  was  lengthy.   Apart from  the Florida

            assault   conviction  that  represented  his  first  criminal

            history  point, Connolly  had been  convicted for  car theft,

            malicious   damage,   larceny,  multiple   assaults,  weapons

            offenses and various drug offenses, in addition to other less

            serious charges.   For  various  reasons--such as  age--these

            convictions  did not  automatically  translate into  criminal

            history points.     The guidelines provide that  the district

            court   may  depart  upward   wherever  reliable  information

            indicates that  "the criminal history category  [in which the

            defendant  is initially placed]  does not  adequately reflect

            the seriousness  of the defendant's past  criminal conduct or

            the  likelihood" of future crime.   U.S.S.G.    4A1.3.  Here,

            the district court followed  the guidelines' methodology  for

            departures  by  making  an   adjustment  in  the  defendant's

            criminal  history category  and then  applying the  guideline

            range that corresponded to the new  category.  Id.  The court
                                                           ___

            determined the  new  criminal history  category  by  awarding

            points for a prior armed burglary conviction that  fell about

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two  years  beyond  the  15-year  cut-off   period.    Id.   
                                                                   ___

            4A1.2(e)(1).

                 In this court, Connolly objects  to the departure on the

            ground that the prior conviction was a single incident,  long

            in the past, that did not closely resemble the present crime.

            But  the district court did not make the adjustment solely on

            account  of  the single  prior  conviction but  because  of a

            substantial  criminal  career   which,  after  a  period   of

            reasonably good behavior, Connolly gave evidence of resuming.

            The  17-year-old conviction, bearing some general resemblance

            in  type to  the  current  offense,  was  used  simply  as  a

            benchmark to measure the departure.

                 The district court's  judgment as to  the need for,  and

            degree of,  departure based on uncounted  criminal history is

            subject to substantial deference  on judicial review.  United
                                                                   ______

            States v.  Mottram, 34  F.3d 1065 (1st  Cir. 1994).   We have
            ______     _______

            already noted the defendant's  record and the defendant's two

            recent crimes--the recent Florida  assault and the armed drug

            offense in this case.  It is unnecessary to embellish matters

            by describing in more detail the very dangerous home invasion

            in this  case, which  nearly resulted  in several  deaths, or

            Connolly's  prior motorcycle-gang affiliations and their role

            in this case.

                 Connolly's  remaining arguments  relate to  the district

            court's  findings as to the  quantity of drugs and Connolly's

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leadership role.  Connolly says that these findings rested on

            unreliable  hearsay, thus violating  both the  guidelines and

            the Sixth Amendment.  He also says that the evidence does not

            justify  the findings.    Reliable  hearsay  can be  used  at
                                      ________

            sentencing, United States v.  Zuleta-Alvarez, 922 F.2d 33, 36
                        _____________     ______________

            (1990),  cert.  denied,  500  U.S. 927  (1991),  and  whether
                     _____________

            reliable evidence  supported the  findings here is  tested on

            appeal under the "clear error" standard.  Id. at 36-37.
                                                      ___

                 Since no drugs were  present in the house, the  quantity

            attributable  to  Connolly  depended   on  what  he  and  his

            confederates  expected to find.   United States  v. Piper, 35
                                              _____________     _____

            F.3d  611, 615 (1st Cir. 1994).   The views of Connolly's co-

            defendants  were assuredly  hearsay,  being  reported in  the

            presentence  report  and  by  an  investigating  officer  who

            testified.  But  the co-defendants were generally  consistent

            in fixing 320 pounds as about the least that Connolly and the

            others  expected to find.  The district court was not obliged

            to  credit Connolly's own statement that he did not expect to

            find any drugs at all.  United States v. Brewster,  1 F.3d 51
                                    _____________    ________

            (1st Cir. 1993).

                 As  for  "leadership,"  Connolly  did  not  concoct  the

            offense  but,  at the  behest  of the  original  plotters, he

            recruited four  other men into  the venture, claimed  a large

            share of the expected profits, and negotiated terms  with the

            original plotters.   Other co-defendants pointed  to Connolly

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as  giving  orders  to  others  in the  actual  planning  and

            execution of the  plan.  Connolly could permissibly  be found

            to be a leader or organizer, U.S.S.G.   3B1.1(a).  Again, the

            district court was not  required to accept Connolly's denials

            or those  of a  close friend,  who gave  rather insubstantial

            testimony.

                 Affirmed.
                 _________

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