United States v. Rivera

• Court: Court of Appeals for the Third Circuit
• Decided: February 9, 2004
• Docket: 02-3067
• Status: Published

Opinion

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

2-9-2004

USA v. Rivera Precedential or Non-Precedential: Precedential

Docket No. 02-3067

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Recommended Citation "USA v. Rivera" (2004). 2004 Decisions. Paper 960. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/960

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Counsel for Appellant UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT Clayton A. Sweeney, Jr. (Argued) P.O. Box 55441 No. 02-3067 Philadelphia, PA 19127-5441

Counsel for Appellee UNITED STATES OF AMERICA Christopher J. Christie v. United States Attorney George S. Leone ISAAC RIVERA, Chief, Appeals Division Appellant 970 Broad Street, Room 700 Newark, N.J. 07102-2535

ON APPEAL FROM THE UNITED Norman Gross (Argued) STATES DISTRICT COURT Assistant United States FOR THE DISTRICT OF Attorney NEW JERSEY United States Courthouse 401 Market Street, Fourth Floor District Court Judge: Camden, N.J. 08101-2098 Honorable Jerome B. Simandle

(D.C. No. Cr. 01-373-05) OPINION OF THE COURT

Argued: December 4, 2003

Before: SLOVITER and ALITO, Circuit OBERDORFER, Senior District Judge: Judges, and OBERDORFER,* District Judge. Isaac Rivera appeals from his sentence after he pled guilty pursuant to (Opinion Filed: February 9, 2004) a plea agreement with the United States. For the reasons stated below, we hold that the government breached that agreement and vacate the sentence. We * then follow the well-established The Honorable Louis F. procedure of remanding to the district Oberdorfer, Senior District Judge for the court for resentencing. District of Columbia, sitting by designation.

1 I. The dispute on appeal focuses on the provisions of the plea agreement From approximately June 2000 addressing sentencing, in particular a until on or about June 5, 2001, Rivera 1 section titled “Stipulations.” App. at led a drug trafficking conspiracy that 60(a). That section stated that the United imported kilogram-quantities of cocaine States and Rivera “agree to stipulate at powder from his suppliers in Puerto sentencing to the statements set forth in Rico, converted some of that powder into attached Schedule A.” Id. Schedule A, cocaine base, and distributed the cocaine in turn, provided in its first sentence that and cocaine base in Camden, New the United States and Rivera “agree to Jersey. On October 9, 2001, a federal stipulate at sentencing to the statements grand jury returned a two-count set forth below, subject to the conditions indictment against Rivera. Count One in the attached plea agreement.” Id. at charged him with conspiracy to distribute 64(a). Schedule A also stated that the and to possess with intent to distribute base Offense Level was 38. By way of more than 50 grams of cocaine base and adjustment, however, Rivera would more than five kilograms of cocaine receive a two-level Offense Level powder in violation of 21 U.S.C. § 846. reduction if his “acceptance of Count Two charged possession with responsibility continue[d] through intent to distribute more than 500 grams sentencing.” Id. He was to receive an of cocaine in violation of 21 U.S.C. § additional one-level decrease if the 841(a)(1). On November 7, 2001, Rivera Offense Level set by the district court and the United States entered into an was 16 or greater. Id. Section 5, the agreement which provided, among other provision focused on by the parties on things, that Rivera would plead guilty to appeal, stated, “In accordance with the Count One of the indictment and the above, the applicable guidelines total United States would dismiss Count Two. offense level is 35.” Id. (emphasis supplied).

The plea agreement also stated 1 some conditions: that the “sentence to be The underlying criminal imposed upon Isaac [Rivera] is within indictment named Rivera as Isaac Burgos the sole discretion of the sentencing a/k/a Isaac Bonilla a/k/a Isaac Rivera. At judge” and that the government “cannot the change of plea hearing, by the and does not make any representation or consent of both parties, the district court promise as to what guideline will be granted a motion to deem changed all found applicable . . . or what sentence pleadings and documents to reflect that Isaac [Rivera] will ultimately receive.” the defendant (now appellant)’s true App. at 59(a). The plea agreement name is Isaac Rivera, with Burgos and further stated that “[e]xcept as otherwise Bonilla listed as aliases.

2 provided in this agreement, [the United The court asked: “Does the government States] reserves its right to take any take any position with regard to role in position with respect to the appropriate the offense?” App. at 29(a). By way of sentence to be imposed on [Rivera] by allocution, the prosecutor responded, “we the sentencing judge.” Id. at 59(a)-60(a). stand by the probation officer’s conclusions. . . . The notion that On February 10, 2002, the United because Schedule A refers to a specific States Probation Office advised the offense level . . . perhaps it’s a little bit prosecution, Rivera, and the court that of poor draftsmanship. . . . Schedule A Rivera’s leadership “role in the is . . . silent [] as . . . to any other upward conspiracy warrants a four level increase, or downward adjustments.” Id. at 29(a)- pursuant to [USSG] § 3B1.1(a).” 30(a). Presentence Report at 10. Accordingly, the report called for an Offense Level of Ruling orally from the bench at 39, while recognizing that “a 4+ the sentencing hearing, the district court adjustment [] is contrary to the plea stated: agreement, in that the plea agreement specifies a total offense level of 35.” Id. the parties recognized at at 19. On April 18, 2002, Rivera filed the time of their stipulation objections in which he stated regarding that there may be other the recommendation that the Offense Guidelines that have a Level be set at 39: “such an application is bearing upon what the repugnant to the defendant’s plea appropriate sentence agreement.” App. at 132(a). should be, and that they had not reached agreement The United States’ attorney as to any other Guidelines, replied to Rivera’s objections by filing a and . . . The parties do letter brief with the district court. The reserve their rights to argue letter argued that Rivera’s assertion mitigating or aggravating “constitutes a clear misapplication of the circumstances that are not Plea Agreement,” and that, regarding the covered by their defendant’s role within the conspiracy, stipulations. . . . The “the United States is not precluded from probation department has arguing that the defendant is deserving of proposed that there be a a role enhancement.” Id. at 143(a). four point enhancement for Rivera did not file a response to the the defendant’s leadership government’s letter. role in the conspiracy. The parties’ stipulation is silent On July 19, 2002, the district as to any adjustment for court conducted the sentencing hearing. role. The parties’

3 stipulation does not applicable offense level.2 Our analysis of constitute an agreement that argument proceeds in three parts. that there shall be no role We first discuss the standard of review, adjustment. then the merits of Rivera’s claim that the United States breached the plea But even if it is interpreted agreement, then the issue of remedy. as at least a silent agreement that the proper A. Standard of Review Total Offense Level is 35 as Paragraph 5 of the The threshold question is the stipulations recites, the applicable standard of review. We Court nonetheless has to conclude that our review is de novo. The look at the facts of the case and to determine whether the Sentencing Guidelines 2 Rivera raises five indicate that any role additional arguments: that (1) the district adjustment, either upward court erred in failing to hold that the or downward, is government breached its duty to consider appropriate in this case. all of Rivera’s cooperation under USSG § 5K1.1; (2) 21 U.S.C. §§ 841(B)(1)(A)- Id. at 27(a)-28(a) (emphasis supplied). (B) are facially unconstitutional with respect to cocaine and cocaine base; (3) The district court ultimately USSG § 3B1.1(a) is unconstitutional adopted the factual findings and under Apprendi v. New Jersey, 530 U.S. recommendations of the Presentence 466 (2000), because it increases a Report and, accordingly, set the mandatory minimum sentence upon applicable Offense Level to 39 and judicial fact-finding under a sentenced Rivera to a 324 months term preponderance of the evidence standard of imprisonment and supervised release of proof; (4) USSG § 3B1.1 is of five years. This appeal followed. unconstitutional under Apprendi and Ring v. Arizona, 536 U.S. 584 (2002), II. because it authorizes punishment beyond the facts established by the offense of Rivera’s principal argument is that conviction or stipulations; and (5) that the United States’ allocution breached applying 18 U.S.C. § 3742 (g)(2) on the plea agreement by advocating to the remand would violate the constitutional sentencing judge that the four-level separation of powers doctrine. We enhancement recommended by the resolve the appeal on the issue of breach Presentence Report be added to the of plea agreement and do not reach these additional arguments.

4 United States argues that Rivera failed to The government argues that our raise the issue below. It cites United statement in Queensborough is not States v. Thornton, 306 F.3d 135, 137 controlling because we ultimately held (3d Cir. 2002), for the proposition that that there was no error and because it is Rivera’s claim for breach of plea not made clear in that decision whether agreement by the United States is the defendant made any argument that therefore subject to the “plain error the plain error standard of review should standard of review on appeal.” Aple’s apply. This reading of Queensborough is Br. at 19. However, Thornton involved a too narrow: in adopting a “plenary” defendant’s claim that a district court framework of review, rather than the violated the plea agreement by discretionary four-plus step plain error considering evidence that the plea review of United States v. Olano, 507 agreement had stipulated would be U.S. 725 (1993), and its progeny, we did excluded for the purposes of sentencing. not reserve the question of what standard See 306 F.3d at 1357. In contrast, in a of review controlled. Nor did we qualify case where the defendant, like Rivera, our statement that the applicable review claimed breach of the plea agreement by was “plenary” in any way. Our law the prosecution, and the defendant defines “plenary” as de novo. See Dixon “concede[d] that he did not raise this Ticonderoga Co. v. Estate of O’Connor, objection in the district court,” this court 248 F.3d 151, 161 (3d Cir. 2001). has stated, without qualification, that Accordingly, even if Rivera’s objection “whether the government violated the to the Presentence Report did not terms of a plea agreement is a question of effectively raise the issue before the law subject to plenary review.” United district court, 4 our review must be de States v. Queensborough, 227 F.3d 149, 156 (3d Cir. 2000) (emphasis supplied) (citing United States v. Moschahlaidis, See 227 F.3d at 156; see also United 868 F.2d 1357, 1360 (3d Cir. 1989)). States v. Peterson, 225 F.3d 1167, 1170 Accord, e.g., United States v. Lawlor, n.2 (10th Cir. 2000) (collecting cases on 168 F.3d 633, 636 (2d Cir. 1999); United either side of the circuit split). States v. Courtois, 131 F.3d 937, 938 & 4 We note, parenthetically, n.2 (10th Cir. 1997). 3 that the United States and the sentencing judge were on notice from Rivera’s objections, filed before the sentencing 3 As we observed in hearing, that Rivera viewed the adoption Queensborough, a number of other courts of the probation officer’s recommended of appeals have reviewed claims that the departure from the plea agreement’s government breached a plea bargain not stipulated 35 Offense Level (or an raised before the district court under a allocution or sentence adopting that clearly erroneous or plain error standard. recommendation) as “repugnant to [the]

5 novo.5 Nolan-Cooper, 155 F.3d 221, 236 (3d Cir. 1998). Third, the United States has Well-established, additional an obligation to “‘adhere strictly to the principles confirm the propriety of de terms of the bargain it strikes with novo review of Rivera’s claim. First, defendants.’” Queensborough, 227 F.3d “[b]reach of a plea agreement by a at 156 (quoting Moschahlaidis, 868 F.2d prosecutor [] strikes at public confidence at 1361). “Because the defendant, by in the fair administration of justice and, entering into the plea, surrenders a in turn, the integrity of our criminal number of h[is] constitutional rights, justice system in which a vast number of ‘courts are compelled to scrutinize cases are resolved by plea agreement.” closely the promise made by the Dunn, 247 F.3d at 463. Second, because government in order to determine they relieve the government of the need whether it has been performed.’” to prepare and conduct a trial, “[p]lea Nolan-Cooper, 155 F.3d at 236 (quoting agreements, though arising in a criminal United States v. Hayes, 946 F.2d 230, context, are analyzed under contract law 233 (3d Cir. 1991)). Fourth, in standards.” United States v. determining whether the plea agreement has been breached, we must determine “whether the government’s conduct is plea agreement.” Thus the judge must inconsistent with what was reasonably have known, or is chargeable with understood by the defendant when knowledge, that Rivera thought that a 39 entering the plea of guilty.” United Offense Level was contrary to the plea States v. Badaracco, 954 F.2d 928, 939 agreement. The availability of de novo (3d Cir. 1992) (internal quotation marks review on appeal regardless of whether omitted). Finally, “[i]n view of the Rivera formally objected to the government’s tremendous bargaining government’s advocacy makes it power, we will strictly construe the text unnecessary for us to pursue the question against it” as the drafter of plea of whether this indirect notice entitles agreements to the extent the agreement Rivera to de novo review on independent is ambiguous. United States v. Baird, grounds. 218 F.3d 221, 229 (3d Cir. 2000). 5 Accordingly, the United States may not According to the rely upon a ‘rigidly literal’ approach to government, extending de novo review the construction of the terms of the plea “to areas outside the breach context agreement.” Nolan-Cooper, 155 F.3d at would eviscerate the contemporaneous 236 (citing Moschahlaidis, 868 F.2d at objection requirement.” Aple’s Br. at 36. 1361). However, our statement of the applicable standard of review in Queensborough was limited to the plea bargain context and the important concerns it implicates.

6 B. Merits of Rivera’s Claim for The government advances five Breach of Plea Bargain (closely related) arguments in favor of the district court’s interpretation of the Rivera’s argument that the plea agreement, none of which we find government breached the plea agreement persuasive. The government’s most is straightforward and persuasive. The forceful argument is that the provision in plea agreement stated: “In accordance the plea agreement – that “except as with the above, the applicable guidelines otherwise provided in this agreement, total offense level is 35.” 6 The statement [the United States] reserves its right to by the United States’ attorney that “we take any position with respect to the stand by the probation officer’s appropriate sentence to be imposed on conclusions,” App. at 29(a) – which Isaac [Rivera] by the sentencing judge” – included the recommendation that the permitted the government to advocate a Offense Level should be 39 – was role enhancement. However, this inconsistent with the stipulation entered argument, based on the broadly worded into by the United States that the exception, runs counter to, and is applicable Offense Level would be 35. therefore trumped by, the specific By, in effect, endorsing the Probation stipulation in the agreement. See Corbin Office’s recommendation of an Offense on Contracts § 24.23 (revised ed. 1998) Level of 39, the government breached its (“If the apparent consistency is between agreement that the stipulated applicable a clause that is general and broadly Offense Level would be 35.7 inclusive in nature and one that is more limited and specific in its coverage, the 6 more specific should . . . be held to Given this language, it is prevail over the more general term”); see difficult to understand how the district also Restatement (Second) of Contracts § court arrived at the conclusion that there 203. Because the Offense Level was may have been a “silent agreement that specifically stipulated to, whereas the the proper Total Offense level is 35.” government’s right to advocate a role App. at 25(a) (emphasis supplied). 7 The possibility that the district court might have adopted the doctrine that the government must adhere probation officer’s findings and to its bargain in the plea agreement is so recommendations even had the fundamental that even though the government not urged their adoption is government’s breach is inadvertent and not relevant to the question of breach. the breach probably did not influence the To be entitled to remand, Rivera need judge in the sentence imposed, due only show that the United States process and equity require that the breached its agreement. See sentence be vacated.”) (internal Nolan-Cooper, 155 F.3d at 236 (“the quotations omitted).

7 enhancement was not, the government’s Level at 16 or higher). endorsement of an enhancement that would raise the Offense Level above the Third, and relatedly, the stipulated level contravened the plea government asserts that the position of agreement. Moreover, to the extent there paragraph 5 in Schedule A, coming is ambiguity caused by the “little bit of immediately after the paragraphs which poor draftsmanship” conceded by the established the components of the prosecutor, we must construe the calculation set forth in that paragraph, agreement against the government as “suggests that ¶ 5 was intended to drafter. See Baird, 218 F.3d at 229.8 explain and justify those . . . provisions, rather than to bind a Total Offense Level Second, the government argues [of] 35 for all purposes.” Aple’s Br. at that an interpretation that binds it to the 40 (emphasis supplied). We agree, as stipulation in Paragraph 5 renders mentioned, that the “Stipulations” “superfluous” the language in Paragraph section’s function was, in part, to explain 5 that the stipulation to the Offense Level the calculation of the applicable Offense being 35 was “in accordance with the Level. However, this does not make the above.” Aple’s Br. at 40. Nor is this stipulation non-binding. To the extent argument persuasive. The foregoing the United States, as the drafting party, language may be fairly construed as desired to qualify the stipulation, it could having independent, non-“superfluous” have included such language. But it did meaning: it explains the steps by which not. And, again, to the extent that this the stipulation reduced the Offense Level provision is ambiguous – and it is at least from 38 to 35 (two-level reduction for ambiguous – we construe the provision acceptance of responsibility; one level as effecting a binding obligation on the reduction if the court set the Offense government. Cf. Baird, 218 F.3d at 229.

Next, argues the government, the 8 district court’s construction of the plea Perhaps recognizing that agreement should be upheld because the provision at issue here created at least “there is no controlling judicial authority ambiguity on the question of the . . . which has held, even at this time, that government’s ability to, consistent with language similar to that in this plea the plea agreement, advocate for agreement forbade the government from enhancements not specified in the advocating [] a role enhancement.” agreement, the government concedes that Aple’s Br. at 39. We reject this “[t]he United States Attorney’s Office argument. That the construction of this has subsequently re-drafted its form plea agreement’s stipulation language, or cooperating plea agreement to omit any language similar to it, has not apparently stipulation regarding the Total Offense been analyzed in a published opinion is Level.” Aple’s Br. at 26 n.8.

8 no bar to our analysis of the agreement. enhancement. See App. at 131(a). Significantly, the government identifies no authority, controlling or otherwise, C. Remedy that has sanctioned role advocacy where the plea agreement was silent regarding The final issue concerns what role enhancement and affirmatively remedy is appropriate. “When the stipulated a particular Offense Level. government breaches a plea agreement, the general rule is to remand the case to Finally, the government urges us the district court for a determination to draw an inference adverse to Rivera whether to grant specific performance or from his failure to object before the to allow withdrawal of the plea.” district court to the statement in the Nolan-Cooper, 155 F.3d at 241. “It is government’s letter brief concerning an also the rule in this circuit that if specific enhancement for role. The government performance is the applicable remedy, cites language from a recent opinion by the defendant must be re-sentenced by a a sister circuit court that the appellant’s different district judge than the one who “failure to object at sentencing [that the presided over the now-vacated original government breached the plea sentence.” Id.9 Consistent with this agreement] is but further evidence that Circuit’s practice, the parties agree that if his expectations of the government were we find, as we have, a breach of the plea satisfied.” United States v. Werner, 317 agreement, the case should be remanded F.3d 1168, 1170 (10th Cir. 2003). for resentencing before a different judge. However, we are reluctant to draw any See Aplt’s Br. at 48; Aple’s Br. at 50 such inference from silence without n.20; Nolan-Cooper, 155 F.3d at 241 (in more. Further, the government’s remanding for reassignment and argument is not supported by the record. resentencing, explaining that “‘[s]pecific Far from being satisfied, Rivera firmly performance is feasible and is a lesser objected to the probation officer’s burden on the government and recommendation of an Offense Level of defendant’”) (quoting United States v. 39 as being “repugnant to the Kurkuler, 918 F.2d 295, 302 (1st Cir. defendant’s plea agreement.” Although 1990)). Accordingly, we will vacate the not a challenge to the government’s sentence imposed and remand the case to advocacy of a role enhancement, this the district court for resentencing before objection, filed in the district court subsequent to the execution of the plea agreement, but over three months before 9 By directing resentencing sentencing, suggests quite clearly that by a different District Judge, we do not Rivera did not accept the theory that the suggest that the original District Judge plea agreement authorized the could not resentence appropriately. We government to advocate for a role are merely following our prior opinions.

9 a different judge.

III.

“It is very well to say that those who deal with the Government should turn square corners. But there is no reason why the square corners should constitute a one-way street.” Federal Crop Ins. Corp. v. Merrill, 332 U.S. 380, 387-88 (1947) (Jackson, J., dissenting). For the reasons set forth above, we hold that the United States breached the plea agreement, VACATE the sentence, and REMAND to the district court for reassignment to a different judge and resentencing.