United States v. MacPherson

590 F.3d 215, 2009 U.S. App. LEXIS 28609, 2009 WL 5125488

• Court: Court of Appeals for the Second Circuit
• Decided: December 30, 2009
• Docket: Docket 08-1829-cr (CON)
• Status: Published

Opinions

PER CURIAM:

This criminal appeal challenges a sentence for a narcotics violation on the ground that the Government violated the plea agreement by recommending a sentence higher than the range estimated to be applicable at the time of the plea. The appeal also challenges the reasonableness of the sentence, which included 262 months’ imprisonment. Carlos MacPherson appeals from the April 15, 2008, judgment of the District Court for the Eastern District of New York (Dora L. Irizarry, District Judge). Applying plain error review to the challenge to the plea agreement, see Puckett v. United States, — U.S. -, 129 S.Ct. 1423, 1428-33, 173 L.Ed.2d 266 (2009), we conclude that, if any error occurred with respect to the plea agreement, it was not plain error, and that the sentence survives review for reasonableness. We therefore affirm.

Background

MacPherson and his co-defendants were charged in a three count indictment with various narcotics offenses. Pursuant to a plea agreement, MacPherson pled guilty to one count, which charged him with conspiring to import into the United States 100 grams or more of heroin and five kilograms or more of cocaine, in violation of 21 U.S.C. §§ 963, 960(a)(1), 960(b)(2)(A), and 960(b)(l)(B)(ii). In conformity with United States v. Pimentel, 932 F.2d 1029, (2d Cir.1991), the Government included in the plea agreement its estimate of a likely Guidelines sentencing range. The agreement stated, in pertinent part:

2.... The Office will advise the Court and the Probation Department of information relevant to sentencing, including criminal activity engaged in by the defendant, and such information may be used by the Court in determining the defendant’s sentence. The Office estimates the likely adjusted offense level under the Guidelines to be level 32 [calculated from base offense level 34, see U.S.S.G. § 2Dl.l(c)(3), less 2 levels for acceptance of responsibility, see id. § 3El.l(a)]. This level carries a range of imprisonment of 121 to 151 months [in Criminal History Category I]. If the defendant pleads guilty on or before June 20, 2007, the government will move the Court, pursuant to U.S.S.G. § 3El.l.(b), for an additional one-level reduction, resulting in an adjusted offense level of 31. This level carnes a range of imprisonment of 108 to 135 months, assuming that the defendant will be sentenced within Criminal History Category I. Because the applicable statutory mandatory minimum sentence is ten years[’] imprisonment, the applicable Guidelines range is expected to be 120 to 135 months. The defendant stipulates that his sentence should be calculated based on a drug type and quantity of fifteen kilograms or more of a substance containing cocaine and waives any right to a jury trial in connection with such issue.

3. The Guidelines estimate set forth in paragraph 2 is not binding on the Office, the Probation Department or the Court. If the Guidelines offense level advocated by the Office, or determined by the Probation Department or the Court, is different from the estimate, the defendant will not be entitled to withdraw the plea.

5. The Office agrees that:

based upon information now known to the Office, it will

b. take no position concerning where within the Guidelines range determined by the Court the sentence should fall; and

c. Make no motion for an upward departure under the Sentencing Guidelines.

If information relevant to sentencing, as determined by the Office, becomes known to the Office after the date of this agreement, the Office will not be bound by paragraphs 5(b) and 5(c).

At the plea hearing the District Court, after ascertaining that the defendant understood the rights he was giving up by pleading guilty, stated:

Let me just also remind you that by entering into this [plea] agreement you have stipulated that your sentence should be calculated based on the drug type and quantity of 15 kilograms or more of a substance containing cocaine and that you have waived any right to a jury trial in connection with any such issue, do you understand that?

The defendant answered, “Yes.”

The Court then discussed the Guidelines and stated:

The bottom line is that until the date of sentencing when we get a presentence report, as I said before, and I hear from you, your lawyer and from the government, we will not know with any certainty what the guidelines will be or whether there will be grounds to depart from them or whether the Court will impose a non-guideline sentence, do you understand that?

The defendant answered, ‘Yes.”

In response to the Court’s inquiry, the prosecutor stated that “the government estimates that the defendant would fall within adjusted offense level 31” with a sentencing range, because of the ten year mandatory minimum, of 120 to 135 months. The Court then ascertained that the defendant understood that “these are all estimates that are not binding on the government, Probation or the Court” and that “if this estimate is wrong, that you will not be permitted to withdraw your plea of guilty.”

The Court then turned to the specifics of Count One, reading it verbatim to the defendant, including the references to importing “100 grams or more of a substance containing heroin” and “5 kilograms or more of a substance containing cocaine.” The defendant explicitly acknowledged repeatedly traveling to Peru to make arrangements to purchase heroin and meeting a courier at John F. Kennedy Airport who was carrying ten kilograms of cocaine.

The Court accepted the guilty plea to Count One.

The Presentence Report (“PSR”) determined that the defendant conspired to import and distribute fifteen kilograms of cocaine and seven kilograms of heroin. The PSR recommended an upward adjustment of 4 levels for the role that the defendant played in the offense, i.e., managing criminal activity involving more than five conspirators. As a result, the PSR found appellant’s total offense level to be 37, 6 levels higher than the estimate of 31 in the plea agreement. The sentencing range at offense level 37 in Criminal History Category I is 210 to 262 months.

At sentencing, the defendant objected to the four level enhancement for his role in the offense and the inclusion of the seven kilograms of heroin in the determination of his offense level. The defendant did not object on the basis of the inconsistency between the estimate of the Guidelines sentencing range in the plea agreement and the PSR, nor did he seek to withdraw his guilty plea. The Government advocate ed a sentence based on seven kilograms of heroin, in addition to the cocaine, and a role adjustment. The District Court overruled the defendant’s objections, reviewed the section 3553(a) factors, and determined that a non-Guidelines sentence was not appropriate. The Court also found that the defendant had not been forthright in his acceptance of responsibility. The Court found that the defendant’s offense level was 37 with a sentencing range of 210 to 262 months and imposed a sentence of 262 months’ imprisonment, five years of supervised release, and a $100 special assessment.

Discussion

There are two issues for review: (1) whether the Government violated the plea agreement and (2) whether appellant’s sentence at the high end of the applicable Guidelines range was appropriate.

I. Claimed Violation of the Plea Agreement

(1) Standard of review. Although we have previously ruled that a defendant need not object in the trial court in order to preserve for appeal a claim that a plea agreement has been violated, see, e.g., United States v. Griffin, 510 F.3d 354, 360 (2d Cir.2007); United States v. Lawlor, 168 F.3d 633, 636 (2d Cir.1999), the Supreme Court has more recently ruled that such claims are to be reviewed only for plain error in the absence of objection in the trial court. See Puckett, 129 S.Ct. at 1428-33. To prevail on plain error review, an appellant must show that (1) there is error, (2) it is plain, (3) it affects a substantial right, and (4) it seriously affects the fairness of the judicial proceedings, resulting in a miscarriage of justice. See United States v. Zvi, 168 F.3d 49, 58 (2d Cir.1999).

(2) Applying plain error review.

For the first time on appeal, MacPherson contends that his sentence violated the plea agreement. His claim is based not only on the Government’s advocacy of a sentence based on the seven kilograms of heroin that were not included in the Pimentel estimate, but also on the sentence in the plea agreement in which the defendant “stipulates that his sentence should be calculated based on a drug type and quantity of fifteen kilograms or more of a substance containing cocaine.” He contends that the Government’s advocacy that his sentence should be based on the seven kilograms of heroin, which were known to the Government at the time of the plea agreement, shows that the Government’s estimate was in bad faith and justifies an opportunity to withdraw his plea. Whether this contention survives plain error review requires some consideration of two recent decisions concerning sentences that exceed Government Pimentel estimates, United States v. Palladino, 347 F.3d 29 (2d Cir.2003), and United States v. Habbas, 527 F.3d 266 (2d Cir.2008).

Palladino ruled that the plea could be withdrawn after the prosecutor advocated a higher sentencing range than the range estimated in the plea agreement. However, in similar circumstances, Habbas ruled that the plea could not be withdrawn, stating:

[W]e reject [the defendant’s] argument that the government violated his rights under the plea agreement by advocating a higher Guidelines level than it had estimated in the plea agreement.

Habbas, 527 F.3d at 270. In addition, Habbas explicitly rejected the claim that Palladino “established a broad rule, categorically prohibiting the government from deviating from a Pimentel estimate, absent newly discovered facts.” Id. at 272. In view of these conflicting outcomes concerning plea withdrawal in two cases where the prosecutor advocated a sentencing range higher than the range estimated in the plea agreement, the prosecutor’s similar conduct in the pending case cannot have precipitated plain error, if any error at all.

Nor does the prosecutor’s advocacy of a sentence based on the seven kilograms of heroin constitute plain error just because the plea agreement stated that the defendant “stipulates that his sentence should be calculated based on a drug type and quantity of fifteen kilograms or more of a substance containing cocaine.” Initially, we note that, whereas typical contract stipulations state that the parties stipulate to some agreed upon terms, the agreement in this case states only that the defendant stipulates to a sentence based on the cocaine quantity. In any event, the agreement and the plea colloquy put the defendant on notice that the Pimentel estimate was not binding on the prosecutor and that if the estimate was wrong, the plea could not be withdrawn. In such circumstances, there was no plain error.

II. Challenge to the Sentence

The Appellant contends that the District Court double-counted certain factors by sentencing him at the high end of the Guidelines range based on the same factors that provided the basis for the Court’s finding of the applicable Guidelines range in the first place. These factors were that MacPherson had trafficked in heroin and cocaine in substantial quantities, he was an organizer and a supervisor and had recruited couriers, and he had engaged in narcotics offenses prior to the charged crime.

Initially, we note that there is no authority that prevents a sentencing judge from using facts of the offense conduct both to determine the applicable Guidelines range and to select a sentence within that range. In any event, the District Court did not limit its articulation of sentencing reasons to facts that determined the sentencing range. The Court explained that MaePherson created “his own drug organization,” got his father involved in the organization as a courier, “preyed on some of [his] co-defendants when they were facing dire family situations and [ ] enticed them into helping [him] to bring drugs into this country.” The Court also noted that when one of MacPherson’s co-defendants “tried to extricate herself, and in fact she did extricate herself, [appellant] still came after her trying to convince her to get back involved.” Sentencing at the high end of the applicable range was not unreasonable.

Conclusion

The judgment of the District Court is affirmed.