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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 19-14440 Non-Argument Calendar ________________________
D.C. Docket No. 7:18-cr-00007-HL-TQL-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
KENNETH VERNON HUTTO, a.k.a. KENNY a.k.a. CURLY,
Defendant-Appellant.
________________________
Appeal from the United States District Court for the Middle District of Georgia ________________________
(April 22, 2021)
Before JILL PRYOR, LUCK, and TJOFLAT, Circuit Judges.
PER CURIAM: USCA11 Case: 19-14440 Date Filed: 04/22/2021 Page: 2 of 14
Kenneth Vernon Hutto appeals after he pled guilty to two counts of
transportation for prostitution, in violation of 18 U.S.C. § 2421(a). He argues that
the government breached his plea agreement by failing to recommend that he
should receive an acceptance-of-responsibility reduction and that the District Court
clearly erred in imposing a two-level aggravating role enhancement and a two-
level obstruction of justice enhancement under the Sentencing Guidelines.
Because we conclude that the government did breach the plea agreement but did
not cure that breach—and thus remand this case for resentencing—we do not
address Hutto’s challenges to the sentence enhancements.
I.
From March 2017 to February 2018, Hutto transported a woman, E.B.,
between Georgia and South Carolina for the purposes of prostitution with the
intent to profit from her sexual acts. Hutto’s ex-wife—Shannon Richardson—and
E.B. were friends, and as a result of their friendship, E.B. became acquainted with
Hutto. In March 2017, after he was released from federal prison, Hutto went to
“rescue” E.B. from an abusive and controlling partner. Both Hutto and E.B. later
indicated that the partner’s abuse led E.B. to become depressed.
After Hutto extracted E.B. from her abusive living situation, he explained to
E.B. that his ex-wife (Richardson) made a living by engaging in prostitution. By
April 2017, Hutto had wrangled E.B. into prostitution after suggesting that they
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travel to various locations so that E.B. could engage in commercial sex acts. Since
Hutto was unemployed, he planned to assist in the logistics of the prostitution
operation, including handling the profits. Hutto eventually posted ads on different
websites advertising E.B.’s services for sex.
On June 13, 2017, undercover authorities from the Lowndes County
Sheriff’s Office and an FBI Task Force responded to an online advertisement
displaying E.B. with visible bruising on her body. The authorities communicated
with E.B.—or someone pretending to be E.B.—via text message and were directed
to meet her at a Super 8 Motel located off Interstate 75 in Valdosta, Georgia.
When the undercover officers arrived, one met with Hutto outside the motel, and
Hutto told him to go to room 141. Inside the room, the officer found E.B. with
bruising on her eyes, neck, and arms. E.B. and the officer agreed on a price of
$125 for a half hour of sex; the officer provided E.B. with $200 and indicated that
he needed change. E.B. did not have change, so she contacted Hutto by phone for
instructions on how to proceed. The officers detained E.B. at that time, and Hutto
was detained outside the motel room.
Authorities then questioned Hutto and asked why E.B. was at the Super 8.
Hutto attempted to dodge the question and explained that E.B. was “having
company and accepting donations.” He also stated that he struck E.B. but did so
for her own protection; Hutto elaborated that several “black pimps” were
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attempting to “haul [E.B.’s] ass away.” Hutto was able to provide authorities with
pricing for visits with E.B., and he admitted that he had been conducting this type
of business for three to four months. Authorities reviewing text messages on
Hutto’s phone later found that Hutto communicated with potential procurers of
E.B.’s commercial sex acts as though he were E.B., and Hutto admitted that he
controlled the money resulting from the prostitution scheme.
In her conversation with the authorities, E.B. stated that she suffered from
schizophrenia, post-traumatic stress disorder, and bi-polar disorder and that Hutto
was aware of these mental health issues. E.B. told the officers that she wanted to
stop performing sexual acts, but when she mentioned it to Hutto, he became angry
and told her that they would not have money or a place to sleep. Eventually, E.B.
admitted that Hutto gave her the bruised eye when he discovered a particular phone
number in her phone.
Hutto was placed in pretrial detention in the Lowndes County Jail. While
there, Hutto called E.B. and encouraged her to write an affidavit stating that he had
done nothing wrong. E.B. obliged, stated in the affidavit that she was not forced to
engage in commercial sexual activity, and stated that she did not want Hutto to be
hurt.
After Hutto was released on bond under a no contact order with E.B.,
authorities arrested him again after learning that he was travelling in South
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Carolina with E.B. in violation of his bond and was continuing to cause her to
engage in commercial sex acts. Yet again, while in pretrial detention, Hutto called
E.B. and tried to influence her testimony. Over the phone, he told both E.B. and
his wife that E.B. would not be able to testify against him due to the statements
that she had made in their telephone conversations.
Hutto was originally indicted on February 14, 2018, but in a superseding
indictment filed on December 12, 2018, Hutto was charged with one count of sex
trafficking by force, fraud, and coercion; two counts of financially benefitting from
sex trafficking by force, fraud, and coercion; and one count of tampering with
witness testimony. A superseding information later charged him with two counts
of transportation for prostitution, in violation of 18 U.S.C. § 2421(a) (“Count One”
and “Count Two”). Hutto pled guilty to Counts One and Two pursuant to a plea
agreement.
In the plea agreement, the government promised to accept Hutto’s guilty
plea in full satisfaction of all possible federal criminal charges known to it at the
time of the plea and to dismiss the pending indictment against him. Paragraph
(4)(B) of the agreement also stated, in relevant part, that:
If the Defendant affirmatively manifests an acceptance of responsibility as contemplated by the Federal Sentencing Guidelines, the United States Attorney will recommend to the Court that the Defendant receive an appropriate downward departure for such acceptance. . . . The
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United States expressly reserves its right to furnish to the Court information, if any, showing that the Defendant has not accepted responsibility, including, but not limited to, denying his involvement, giving conflicting statements as to his involvement, or engaging in additional criminal conduct including personal use of a controlled substance.
The agreement additionally contained a waiver of Hutto’s right to appeal his
sentence unless the sentence exceeded the sentencing guideline range calculated by
the court at sentencing or exceeded the statutory maximum sentence.
In preparing the PSI, the probation officer applied a base offense level of 14
under U.S.S.G. § 2G1.1(a)(2) for Count One. Hutto then received a two-level
enhancement under § 3B1.1(c) for being the organizer, leader, manager, or
supervisor in any criminal activity. He also received a two-level enhancement for
obstruction of justice under § 3C1.1 for influencing the victim—E.B.—to make
statements to law enforcement that would exonerate him. After applying other
enhancements not relevant to this appeal, the probation officer calculated an
adjusted offense level of 24 for Count 1.
On Count Two, the probation officer applied a base level offense of 14
under § 2G1.1(a)(2) and applied the same enhancements as in Count One, resulting
in an adjusted offense level of 24. The probation officer then made a multiple
count adjustment, selected the greater adjusted offense level of 24, and increased
that offense level by 2 under § 3D1.4 to arrive at a total offense level of 26. With a
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criminal history category of VI, Hutto’s guideline range was 120 to 150 months’
imprisonment. The statutory maximum for Counts One and Two was 10 years’
imprisonment.
Hutto objected to the PSI and argued that it should have applied a reduction
for acceptance of responsibility under § 3E1.1. He then objected to receiving a
two-level enhancement under § 3B1.1(c) for being the organizer, leader, manager,
or supervisor of one or more participants in the criminal activity. He likewise
objected to the PSI’s suggestion that he “unlawfully influenced E.B., a witness, to
provide false statements to law enforcement” and to receiving a two-level
adjustment for obstruction of justice under U.S.S.G. § 3C1.1. Finally, Hutto
objected to the description of two facts in the PSI, arguing that he never “rescued”
or “removed” E.B. from her previous living situation and that he was not aware of
E.B.’s formal medical diagnoses until he read the police report.
The government responded that Hutto should not receive an acceptance-of-
responsibility reduction because he did not voluntarily terminate or withdraw from
his criminal conduct; instead, Hutto continued to encourage E.B. to commit acts of
prostitution while in pretrial detention. It argued that Hutto should receive an
aggravating role enhancement because he recruited E.B. to participate in his
criminal conduct, directed E.B.’s movements, and controlled the money she
obtained from the commercial sexual activity. The government also argued that
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Hutto should receive an obstruction of justice enhancement because his
conversations with E.B. demonstrated a continued effort to influence or prevent her
from testifying against him, despite a court order prohibiting him from contacting
her.
At the sentencing hearing, Hutto made four primary arguments regarding his
objections to the PSI. First, he argued that he was entitled to a reduction for
acceptance of responsibility based on his post-plea-agreement conduct and that the
government and the probation officer relied on pre-plea conduct to deny him the
reduction. As part of this argument, Hutto claimed that the government breached
the plea agreement by failing to recommend the reduction even though Hutto had
complied with the conditions of the agreement. Second, he argued that he should
not receive an obstruction of justice enhancement because he had not encouraged
E.B. to give a false statement to law enforcement in his calls with her, but rather he
encouraged her to make a truthful statement that she voluntarily engaged in
prostitution. Third, Hutto argued that he should not receive an aggravating role
adjustment because he only supervised E.B., who could not be considered a
participant in the criminal activity based on some commentary to the Guidelines.
And fourth, he argued that a 150-month sentence exceeded the statutory maximum
on each individual count and that a 120-month sentence accounted for his criminal
history and difficult life circumstances.
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The government attempted to rebut each of Hutto’s arguments and
specifically claimed that Hutto should not receive a reduction for acceptance of
responsibility because he had continued to direct E.B. to engage in prostitution
while in pretrial detention and had objected to the description of relevant conduct
in the PSI that he had stipulated to in his plea agreement. The District Court
ultimately overruled all of Hutto’s objections and sentenced Hutto to a 120-month
sentence as to Count One and a 30-month sentence as to Count Two, each to run
concurrently for a total term of imprisonment of 120 months. The Court also
sentenced him to 20 years of supervised release.
Hutto timely appealed and now argues (1) that the government breached his
plea agreement by failing to recommend that he should receive an acceptance of
responsibility reduction and (2) that the District Court clearly erred in imposing a
two-level aggravating role enhancement and a two-level obstruction of justice
enhancement. The government concedes that it breached the plea agreement by
urging the District Court to withhold a reduction for acceptance of responsibility,
but it argues that it cured the breach by offering the Court a different reason for
withholding the reduction: Hutto’s objections to facts in the PSI. We are not
convinced by the government’s argument. So, because we agree that the
government breached the plea agreement and failed to cure that breach—and thus
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remand this case for resentencing before a different district judge—we do not
II.
We review de novo whether the government has breached a plea agreement
when a defendant preserves his objection in the district court. United States v.
Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004). When a guilty plea rests “in any
significant degree on a promise or agreement of the prosecutor, so that it can be
said to be a part of the inducement or consideration, such promise must be
fulfilled.” Id. at 1105 (quoting Santobello v. New York, 404 U.S. 257, 262, 92 S.
Ct. 495, 499 (1971)). The government is thus bound by any material promise that
induces the defendant to plead guilty. United States v. Hunter, 835 F.3d 1320,
1324 (11th Cir. 2016). Ultimately, we determine whether the government violated
the defendant’s plea agreement “according to the defendant’s reasonable
understanding at the time he entered his plea.” Id.
III.
For present purposes, this appeal raises two issues, which we will address in
turn. First, is Hutto’s appeal barred by the appeal waiver contained in his plea
agreement? And second, if Hutto’s appeal is not barred, did the government
breach the plea agreement and then cure that breach?
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We can dispose of the first issue quickly. While a sentence appeal waiver is
enforceable if it was made knowingly and voluntarily, an enforceable appeal
waiver “is not an absolute bar to appellate review.” United States v. Johnson, 541
F.3d 1064, 1066, 1068 (11th Cir. 2008); see also United States v. Bushert, 997
F.2d 1343, 1350 n.18 (11th Cir. 1993). Specifically, an appeal waiver does not
foreclose a claim that the government breached the plea agreement at sentencing.
United States v. Puentes-Hurtado, 794 F.3d 1278, 1281, 1284 (11th Cir. 2015).
This makes intuitive sense: “traditional contract principles generally apply to plea
agreements,” id., and a criminal defendant should not be bound to the terms of a
plea agreement to which the government has failed to adhere. So, because Hutto’s
claim on appeal is that the government breached his plea agreement, the
agreement’s appeal waiver does not bar appellate review.
With the appeal waiver issue taken care of, we can turn to the government’s
breach and supposed “cure” of the plea agreement. But before we dive into the
facts before us, a few cases and principles are worth discussing.
In United States v. Hunter—a case similar to the one before us—a defendant
agreed to plead guilty to four charges in exchange for the government’s
recommendation at sentencing for a two-level reduction and, if eligible, for the
government’s motion for a one-level reduction for acceptance of responsibility.
835 F.3d at 1323–25. But when push came to shove at sentencing, the government
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refused to make the recommendation and argued against the reduction, contending
on appeal that it was excused from making the recommendation because of the
defendant’s incredible testimony that occurred prior to the negotiation of the plea
agreement. Id. at 1325–26. We held the government’s refusal constituted a
significant and deliberate breach of the plea agreement and vacated and remanded
for resentencing before a different district court judge. Id. at 1328, 1330. From
Hunter, we can distill a simple principle: “the government breaches a plea
agreement when it fails to perform the promises on which the plea was based.” Id.
at 1324.
So, once an appellant establishes a breach of a plea agreement and preserves
an objection to the breach, our precedent dictates that “‘automatic reversal is
warranted.’” Id. at 1328–29 (quoting Puckett v. United States, 556 U.S. 129, 141,
129 S. Ct. 1423, 1432 (2009)). That said, the Supreme Court has recognized that
“some breaches may be curable upon timely objection—for example, where the
prosecution simply forgot its commitment and is willing to adhere to the
agreement.” Puckett, 556 U.S. at 140, 129 S. Ct. at 1432 (emphasis in original).
We have permitted the government to cure its breach of a plea agreement when it
promptly withdraws the breaching action and then acts consistently with the plea
agreement. See Raulerson v. United States, 901 F.2d 1009, 1013 (11th Cir. 1990)
(holding that the government’s release of a house would cure its breach of a plea
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agreement); In re Arnett, 804 F.2d 1200, 1204 (11th Cir. 1986) (allowing the
government to cure the breach of a plea bargain by withdrawing a forfeiture
action). But if the government has breached the agreement and has failed to cure,
we may, in our discretion, remedy the breach by either allowing the defendant to
withdraw his guilty plea1 or by remanding for resentencing before a different
judge. Hunter, 835 F.3d at 1329; see also Santobello, 404 U.S. at 263, 92. S. Ct. at
499.
After an independent review of the record before us,2 we agree with the
government that it breached Hutto’s plea agreement by arguing that he should not
receive a reduction for acceptance of responsibility based on his pre-plea conduct.
But we disagree that the government cured its breach. In essence, the
government’s position is that it “cured” its breach of the plea agreement by
offering a different ground on which the District Court could withhold Hutto’s
acceptance-of-responsibility reduction. This is not a “cure,” but rather an
alternative way to breach the plea agreement. And, in any event, the government
never withdrew its initial argument that Hutto’s pre-plea conduct merited denial of
1 Withdrawal of the guilty plea is generally less favored. United States v. Hunter, 835 F.3d 1320, 1329 (11th Cir. 2016). 2 See United States v. Linville, 228 F.3d 1330, 1331 n.2 (11th Cir. 2000) (stating that we are not required to accept the government’s concession when the law and record do not justify it).
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the reduction. 3 Consistent with this Court’s precedent, the government could not
cure its breach by simply offering an additional rationale to the District Court for
denying Hutto a reduction for acceptance of responsibility when it did not retract
the initial argument that it made in breach of the agreement. See Raulerson, 901
F.2d at 1013; Arnett, 804 F.2d at 1204.
As a result, we hold that the government failed to cure its breach by not
withdrawing its breaching argument. And to remedy the government’s breach of
the plea agreement, we vacate Hutto’s sentence and remand for resentencing before
a different district judge.
VACATED AND REMANDED.
3 Although Hutto may have breached the plea agreement by objecting to relevant facts in the PSI—which could bar him from enforcing a promise made by the government in the same agreement, see United States v. Cesal, 391 F.3d 1172, 1175, 1180 (11th Cir. 2004), vacated and remanded on other grounds, 545 U.S. 1101, 125 S. Ct. 2553 (2005), reinstated, No. 03-15090, 2004 WL 2663906, manuscript op. at 3 (11th Cir. July 13, 2005)—the government abandoned this issue by not raising it on appeal, see United States v. Ford, 270 F.3d 1346, 1347 (11th Cir. 2001). The government also failed to argue in the District Court that Hutto breached the agreement. As a result, this Court need not address whether the government was excused from performing under the plea agreement when it acknowledged that it breached the agreement and did not raise any argument about Hutto’s possible breach. See Puckett v. United States, 556 U.S. 129, 140 n.2, 129 S. Ct. 1423, 1431 n.2 (2009).