United States v. Robert Nathaniel Brown

500 F.2d 375, 1974 U.S. App. LEXIS 7559
CourtCourt of Appeals for the Fourth Circuit
DecidedJuly 18, 1974
Docket73-2046
StatusPublished
Cited by119 cases

This text of 500 F.2d 375 (United States v. Robert Nathaniel Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Robert Nathaniel Brown, 500 F.2d 375, 1974 U.S. App. LEXIS 7559 (4th Cir. 1974).

Opinions

WINTER, Circuit Judge:

Indicted by a grand jury for forgery and possession of stolen mail matter in violation of 18 U.S.C. §§ 495 and 1708, Robert Nathaniel Brown initially pleaded not guilty to both counts. Thereafter, he entered into a plea bargain whereby he pleaded guilty to the charge of possession in consideration of dismissal of the charge of forgery and a recommendation by the government that he received a sentence of three years to be served at Lorton concurrently with the unexpired portion of a sentence to be served after revocation of parole. He was, instead, sentenced to a term of four years without recommendation that it be served at Lorton.

Because we conclude that the plea bargain was not carried out by the office of the United States Attorney, we vacate the sentence and remand for defendant to be resentenced by another district judge.

I.

After the plea bargain was struck between defendant’s attorney and the prosecutor, the defendant tendered a change of plea from not guilty to guilty on the charge of possession of stolen mail matter. Before accepting the change of plea at rearraignment, the district judge engaged in a thoroughgoing exploration of the voluntariness of defendant’s guilty plea. The terms of the plea bargain were spread upon the record, and they provided that the prosecutor would recommend at sentencing (1) that the court sentence the defendant to a term not to exceed three years, (2) that the court make the sentence run concurrently with an outstanding sentence in the District of Columbia if parole was revoked there, as was expected, (3) that the court sentence the defendant to the District of Columbia’s institution at Lorton, which would determine his eligibility for parole, (4) that the court continue bond pending preparation of the presentence report, and (5) that the forgery count would be nol pressed. After advising the defendant that the court was not bound by the prosecutor’s sentencing recommendations and that the maximum sentence possible was two thousand dollars and/or five years in prison, the district judge heard evidence from the prosecutor and the defendant personally which apparently satisfied him that there was a “factual basis” for the guilty plea. See Rule 11, F.R.Cr.P. He then accepted the guilty plea and ordered a presentence report.

Approximately two months later, at sentencing, a different Assistant United States Attorney appeared for the United [377]*377States. At that time the following colloquy ensued:

PROSECUTOR: At this time, Your Honor, the Government calls for sentencing the case of the United States of America vs. Robert Nathaniel Brown, Criminal No. 73-0167.
THE COURT: Anything you wish to say, Mr. [prosecutor].
PROSECUTOR: Well, Your Honor, in light of the plea bargaining agreement, the Government at this time is recommending three years incarceration, and we also recommend that if possible the Defendant be incarcerated at the Lorton Reformatory in Virginia.
THE COURT: Why?
PROSECUTOR: Well, Your Honor, that was part of the plea bargaining.
THE COURT: Not because you believe in it ?
PROSECUTOR: Well, Your Honor, I do have some problems with that, anyhow, but that is the way I understand it.
THE COURT: Anything else?
PROSECUTOR: Nothing further.

After defendant’s attorney had presented his argument on sentencing and the defendant had exercised his right of al-locution, the district court sentenced the defendant to four years’ imprisonment, expressly declining to make the arrangements necessary for incarceration at the Lorton Reformatory.

II.

Disposition of this case is governed by Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). As was recognized there, guilty pleas induced by a plea bargain may be accepted by a trial court and a sentence thereon imposed provided that certain substantive principles of fairness are observed and the necessary procedural protections are followed. One substantive safeguard to which a criminal defendant is always entitled is that 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 part of the inducement or consideration, such promise must be fulfilled.” Santobello, supra, 404 U.S. at 262, 92 S.Ct. at 499.

In the instant case, we believe that the government failed to keep its bargain. We have no occasion to consider the propriety of sentence, or recommendation as to sentence, as an element of a plea bargain, but it is manifest that the consideration which induced defendant’s guilty plea was not simply the prospect of a formal recitation of a possible sentence, but rather the promise that an Assistant United States Attorney would make a recommendation on sentencing. This could reasonably be expected to be the sound advice, expressed with some degree of advocacy, of a government officer familiar both with the defendant and with his record and cognizant of his public duty as a prosecutor for the United States.

Undoubtedly the district court had this understanding of the role of an Assistant United States Attorney at sentencing when he sought the prosecutor’s recommendation. Certainly he was entirely correct in inquiring into the basis of the recommendation to aid him in the exercise of his sentencing discretion. Whether the prosecutor’s halfheartedness in presenting the recommendation was a factor in the district court’s imposing a sentence more severe than that “recommended” is a matter into which we need not inquire. In Santobello, where one prosecutor had promised not to make a sentencing recommendation at the time of plea bargaining and then another prosecutor had called for the maximum punishment at the time of sentencing, there was a strong, unequivocal statement by the trial judge that his sentence was not affected in any way by the prosecutor’s recommendation but rather was based on a highly adverse presentence report, parts of which he read into the record. Stating that they had “no reason to doubt” the trial judge’s statement “that the prosecutor’s recommendation did not influence him,” [378]*378the Court nonetheless reversed and remanded, “emphasiz[ing] that this is in no sense to question the fairness of the sentencing judge; the fault here rests on the prosecutor, not on the sentencing judge.” 404 U.S. at 262-263, 92 S.Ct. at 499. The question of the effect on the district court of the prosecutor’s noncompliance with the plea bargain was thus deemed irrelevant. The sentence was vacated and the case remanded in the “interests of justice” and in order to enforce “the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty.” 404 U.S. at 262, 92 S.Ct. at 499.

In determining the significance of the prosecutor’s failure to fulfill the promise contained in the plea bargain in Santo-bello, the Supreme Court did not inquire into the reasons for the breach; nor do we.

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Bluebook (online)
500 F.2d 375, 1974 U.S. App. LEXIS 7559, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-robert-nathaniel-brown-ca4-1974.