Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
4-15-2004
USA v. Rivera Precedential or Non-Precedential: Precedential
Docket No. 02-3067
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation "USA v. Rivera" (2004). 2004 Decisions. Paper 744. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/744
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
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-3067
UNITED STATES OF AMERICA
v.
ISAAC RIVERA, Appellant
SUR PETITION FOR REHEARING
Present: SCIRICA, Chief Judge, SLOVITER, NYGAARD, ALITO, ROTH, McKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, CHERTOFF, and FISHER, Circuit Judges, and OBERDORFER, District Judge*
The petition for rehearing filed by *Appellee, USA, in the above-entitled case
having been submitted to the judges who participated in the decision of this court and to
all the other available circuit judges of the circuit in regular active service, and no judge
who concurred in the decision having asked for rehearing, and a majority of the circuit
judges of the circuit in regular active service not having voted for rehearing by the court
* Hon. Louis F. Oberdorfer, Senior District Judge for the District of Columbia, sitting by designation, as to panel rehearing only. en banc, the petition for rehearing is denied.1 Judges Chertoff and Fisher would have
granted rehearing en banc. Judge Chertoff files a separate dissent.
By the Court,
/s/ Dolores K. Sloviter Circuit Judge
*AMENDED April 16, 2004 Dated: April 15, 2004 tyw/cc: Clayton A. Sweeney Jr., Esq. Norman J. Gross, Esq. George S. Leone, Esq.
1 A separate Opinion of the Panel Sur Denial of Rehearing is issued regarding the denial of the petition for rehearing in order to address the issues raised in the dissent. Opinion of the Panel sur Denial of Rehearing en banc
OBERDORFER, District Judge.
De novo review is appropriate in this case because of our precedents in United
States v. Queensborough, 227 F.3d 149, 156 (3d Cir. 2000), and United States v.
Moschalaidis, 868 F.2d 1357, 1360 (3d Cir. 1989), and because of the principles
articulated in the panel opinion. While our decision in United States v. Thornton, 306
F.3d 1355 (3d Cir. 2002), employed a plain error standard, that opinion never
acknowledged that the precedents Queensborough and Moschalaidis used plenary review,
nor did it explain why it broke with those precedents. This Circuit has long held that if its
cases conflict, the earlier is the controlling authority and the latter is ineffective as
precedents. Gluck v. United States, 771 F.2d 750, 753 (3d Cir. 1985). Further, United
States v. Vonn, 535 U.S. 55, 66 (2002), does not “effectively undercut” our earlier
precedents on the issue of the standard of review for a claim of breach of plea agreement.
Vonn addressed only Rule 11 errors. Because breach of plea agreement is not an issue
addressed by Rule 11, Vonn’s holding does not apply to Rivera’s claim. Perhaps most
significantly for the purposes of our consideration of en banc review, even if we granted
rehearing and overruled our prior precedents, both the applicable standard of review and
the outcome of the case would remain unchanged. As discussed further below, Rivera
was entitled to de novo review on additional grounds independent from the rule applied in
Queensborough and Moschalaidis.
1 Under Fed. R. Cr. P. 51, “[a] party may preserve a claim of error by informing the
court – when the court ruling or order is made or sought – of the action the party wishes
the court to take, or the party’s objection to the court’s action and the grounds for that
objection.” Rule 51 “relieves a party of the need to renew an objection to an instruction if
the party’s objection has been made clear to the district court.” Moore’s Fed. Prac. 3d §
51.03. Compliance with Rule 51 does not require “surgical precision.” Id. (quoting
Exxon Corp. v. Amoco Oil Co., 875 F.2d 1085, 1090 (4th Cir. 1989)).
In Rivera’s case, both the United States and the sentencing judge were on notice
from Rivera’s objections to the Presentence Report, filed by him with the court before,
and not ruled upon until, the sentencing hearing, that he viewed the adoption of the
probation officer’s recommended departure from the plea agreement as “repugnant to
[the] plea agreement.” Defendant’s Objections to the Presentence Report dated April 18,
2002 (Appendix at 132(a)). Accordingly, Rivera adequately (albeit not expertly)
preserved his claim. Cf. Government of Virgin Islands v. Joseph, 964 F.2d 1380 (3d Cir.
1992) (defendant preserved his objection to admissibility of shooting victim’s hearsay
statement, even though defendant did not interpose contemporaneous objection, where
defendant’s counsel made written pretrial motion to exclude statement, district court
conducted hearing after start of trial, and district court made definitive ruling with no
suggestion that it would reconsider the issue); United States v. Mejia-Alarcon, 995 F.2d
982 (10th Cir. 1993) (defendant’s motion in limine preserved objection to use of prior
2 food stamp conviction evidence, where defense counsel adequately argued issue of
whether prior conviction was admissible other crimes evidence, motion in limine
presented evidentiary issue akin to question of law, and district court's ruling was
definitive). Although (as noted in footnote 4 of the opinion) the rule from our decisions
in Queensborough and Moschalaidis made it unnecessary for the panel to address the
foregoing question of the alternative ground for de novo review of his claim for breach of
plea agreement, Rivera effectively preserved the right to de novo review on that
alternative ground as well.
CHERTOFF, Circuit Judge, dissenting
I respectfully dissent from the Court’s denial of the Government’s petition for
rehearing en banc.
The panel opinion declines to subject Appellant’s claim to the “plain error”
standard of review under Rule 52 of the Federal Rules of Criminal Procedure. That Rule
provides that where, as here, appellant failed to raise a legal challenge in the district
court, we review under the standard set forth in United States v.
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Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit
4-15-2004
USA v. Rivera Precedential or Non-Precedential: Precedential
Docket No. 02-3067
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation "USA v. Rivera" (2004). 2004 Decisions. Paper 744. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/744
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
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 02-3067
UNITED STATES OF AMERICA
v.
ISAAC RIVERA, Appellant
SUR PETITION FOR REHEARING
Present: SCIRICA, Chief Judge, SLOVITER, NYGAARD, ALITO, ROTH, McKEE, RENDELL, BARRY, AMBRO, FUENTES, SMITH, CHERTOFF, and FISHER, Circuit Judges, and OBERDORFER, District Judge*
The petition for rehearing filed by *Appellee, USA, in the above-entitled case
having been submitted to the judges who participated in the decision of this court and to
all the other available circuit judges of the circuit in regular active service, and no judge
who concurred in the decision having asked for rehearing, and a majority of the circuit
judges of the circuit in regular active service not having voted for rehearing by the court
* Hon. Louis F. Oberdorfer, Senior District Judge for the District of Columbia, sitting by designation, as to panel rehearing only. en banc, the petition for rehearing is denied.1 Judges Chertoff and Fisher would have
granted rehearing en banc. Judge Chertoff files a separate dissent.
By the Court,
/s/ Dolores K. Sloviter Circuit Judge
*AMENDED April 16, 2004 Dated: April 15, 2004 tyw/cc: Clayton A. Sweeney Jr., Esq. Norman J. Gross, Esq. George S. Leone, Esq.
1 A separate Opinion of the Panel Sur Denial of Rehearing is issued regarding the denial of the petition for rehearing in order to address the issues raised in the dissent. Opinion of the Panel sur Denial of Rehearing en banc
OBERDORFER, District Judge.
De novo review is appropriate in this case because of our precedents in United
States v. Queensborough, 227 F.3d 149, 156 (3d Cir. 2000), and United States v.
Moschalaidis, 868 F.2d 1357, 1360 (3d Cir. 1989), and because of the principles
articulated in the panel opinion. While our decision in United States v. Thornton, 306
F.3d 1355 (3d Cir. 2002), employed a plain error standard, that opinion never
acknowledged that the precedents Queensborough and Moschalaidis used plenary review,
nor did it explain why it broke with those precedents. This Circuit has long held that if its
cases conflict, the earlier is the controlling authority and the latter is ineffective as
precedents. Gluck v. United States, 771 F.2d 750, 753 (3d Cir. 1985). Further, United
States v. Vonn, 535 U.S. 55, 66 (2002), does not “effectively undercut” our earlier
precedents on the issue of the standard of review for a claim of breach of plea agreement.
Vonn addressed only Rule 11 errors. Because breach of plea agreement is not an issue
addressed by Rule 11, Vonn’s holding does not apply to Rivera’s claim. Perhaps most
significantly for the purposes of our consideration of en banc review, even if we granted
rehearing and overruled our prior precedents, both the applicable standard of review and
the outcome of the case would remain unchanged. As discussed further below, Rivera
was entitled to de novo review on additional grounds independent from the rule applied in
Queensborough and Moschalaidis.
1 Under Fed. R. Cr. P. 51, “[a] party may preserve a claim of error by informing the
court – when the court ruling or order is made or sought – of the action the party wishes
the court to take, or the party’s objection to the court’s action and the grounds for that
objection.” Rule 51 “relieves a party of the need to renew an objection to an instruction if
the party’s objection has been made clear to the district court.” Moore’s Fed. Prac. 3d §
51.03. Compliance with Rule 51 does not require “surgical precision.” Id. (quoting
Exxon Corp. v. Amoco Oil Co., 875 F.2d 1085, 1090 (4th Cir. 1989)).
In Rivera’s case, both the United States and the sentencing judge were on notice
from Rivera’s objections to the Presentence Report, filed by him with the court before,
and not ruled upon until, the sentencing hearing, that he viewed the adoption of the
probation officer’s recommended departure from the plea agreement as “repugnant to
[the] plea agreement.” Defendant’s Objections to the Presentence Report dated April 18,
2002 (Appendix at 132(a)). Accordingly, Rivera adequately (albeit not expertly)
preserved his claim. Cf. Government of Virgin Islands v. Joseph, 964 F.2d 1380 (3d Cir.
1992) (defendant preserved his objection to admissibility of shooting victim’s hearsay
statement, even though defendant did not interpose contemporaneous objection, where
defendant’s counsel made written pretrial motion to exclude statement, district court
conducted hearing after start of trial, and district court made definitive ruling with no
suggestion that it would reconsider the issue); United States v. Mejia-Alarcon, 995 F.2d
982 (10th Cir. 1993) (defendant’s motion in limine preserved objection to use of prior
2 food stamp conviction evidence, where defense counsel adequately argued issue of
whether prior conviction was admissible other crimes evidence, motion in limine
presented evidentiary issue akin to question of law, and district court's ruling was
definitive). Although (as noted in footnote 4 of the opinion) the rule from our decisions
in Queensborough and Moschalaidis made it unnecessary for the panel to address the
foregoing question of the alternative ground for de novo review of his claim for breach of
plea agreement, Rivera effectively preserved the right to de novo review on that
alternative ground as well.
CHERTOFF, Circuit Judge, dissenting
I respectfully dissent from the Court’s denial of the Government’s petition for
rehearing en banc.
The panel opinion declines to subject Appellant’s claim to the “plain error”
standard of review under Rule 52 of the Federal Rules of Criminal Procedure. That Rule
provides that where, as here, appellant failed to raise a legal challenge in the district
court, we review under the standard set forth in United States v. Olano, 507 U.S. 725
(1993). The panel decision is driven by language in United States v. Queensborough, 227
F.3d 149, 156 (3d Cir. 2000) and in United States v. Moscahlaidis, 868 F.2d 1357, 1360
(3d Cir. 1989).
I am not convinced that we need to read our earlier decisions to compel that an
alleged breach of a plea agreement is reviewed de novo even if appellant never
3 complained in the district court. Indeed, our decision in United States v. Thornton, 306
F.3d 1355, 1357 (3d Cir. 2002), employed a plain error standard in reviewing a claim that
the district court violated a plea agreement. The distinction between a district court
violation of a plea agreement and a prosecutor’s violation of a plea agreement is too
fragile to support a difference in the standard of review.
More important, whatever the precedential effect of Queensborough and
Moscahlaidis, I believe they have been substantially undercut by the later decision of the
Supreme Court in United States v. Vonn, 535 U.S. 55 (2002). There, the Supreme Court
held that an error not raised during the course of a guilty plea is reviewed for plain error,
as opposed to the lower harmless error standard. The logic of Vonn is fatal to the
decision here. As in Vonn, de novo review in this context would invite a defendant to
stay silent about an error at the time it could be cured by the district judge, while waiting
“to see if the sentence later struck him as satisfactory.” 535 U.S. at 73.
Finally, the weight of well-reasoned authority in other circuits continues to mount
on the side of reviewing alleged breaches of plea agreements under the plain error rule.
These cases are most recently canvassed in the decision of In re Sealed Case, 356 F.3d
313 (D.C. Cir. 2004).
Because I believe that we should not continue to perpetuate an erroneous standard
of review, I would vote to rehear this matter en banc.