Rehearing granted, June 16, 2009
UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-4568
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
YOLANDA CRAWLEY,
Defendant – Appellant.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. J. Frederick Motz, District Judge.
(1:07-cr-00066-JFM-2)
Submitted: December 24, 2008 Decided: March 30, 2009
Before TRAXLER, DUNCAN, and AGEE, Circuit Judges.
Vacated and remanded by unpublished per curiam opinion.
Jack B. Rubin, Flynn M. Owens, RUBIN & OWENS, P.A., Baltimore,
Maryland, for Appellant. Rod J. Rosenstein, United States
Attorney, Kwame J. Manley, Assistant United States Attorney,
Baltimore, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Yolanda Crawley pled guilty to one count of wire
fraud, 18 U.S.C.A. § 1343 (West Supp. 2008). The district court
imposed a sentence of twenty-four months imprisonment and
ordered Crawley to make restitution in the amount of $200,000.
Crawley appeals the judgment, arguing that the government
breached the plea agreement by not recommending a sentence at
the low end of the advisory guideline range as it was obligated
to do under the terms of the plea agreement. We agree that the
government failed to fulfill its obligation under the plea
agreement. We therefore vacate the sentence imposed by the
district court and remand for resentencing before a different
judge.
Crawley and the government stipulated that she had
knowingly and willfully worked with her son, Sean Green, and two
other people to submit mortgage applications and documents
containing false information about her income and employment so
as to obtain loans to buy two properties in Florida, one worth
over $1 million, the other worth $500,000. The government
stipulated that it would not oppose a two-level adjustment for
acceptance of responsibility, U.S. Sentencing Guidelines Manual
§ 3E1.1 (2007), and that Crawley was eligible for an additional
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one-level reduction under § 3E1.1. 1 The government promised in
Paragraph 13 of the agreement that it would “make a sentencing
recommendation within the low end of the guideline range
determined by the Court,” but the agreement also provided that,
if Crawley breached the agreement, the government would be
released from its obligations under the agreement and free to
recommend any sentence that it considered appropriate.
The plea agreement provided that Crawley would breach
the agreement if she knowingly withheld information; gave false,
incomplete or misleading testimony or information; falsely
minimized the involvement of any person, including herself; “or
failed to accept personal responsibility for her conduct by
failing to acknowledge her guilt to the probation officer who
prepares the Presentence Report.” When the presentence report
was prepared, the probation officer recommended a two-level
adjustment for acceptance of responsibility, stating that
Crawley had admitted her involvement in the offense and accepted
responsibility for her actions, and noting that the government
had agreed to recommend an additional one-level reduction. With
1
The district court may give a two-level reduction in
offense level if it determines that the defendant has accepted
responsibility for her offense. USSG § 3E1.1(a). If the
defendant qualifies for a reduction under subsection (a) and the
government moves for an additional one-level reduction based on
the defendant’s timely notice of her intent to plead guilty, the
district court should grant it. USSG § 3E1.1(b).
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the three-level adjustment under § 3E1.1, the recommended
offense level was 14. Crawley was in criminal history category
I. The recommended advisory guideline range was 15-21 months.
Before sentencing, and before Crawley filed her
sentencing memorandum with the district court, the government
filed a sentencing memorandum in which it agreed with the
guideline calculation in the presentence report, but stated that
it had given notice to Crawley that the district court might
depart upward based on her criminal conduct. The government
also noted that, “[t]he Court has expressed concern about the
nature of these crimes and their facilitation of drug-related
activities.” 2 The government asserted that Crawley’s son, Sean
Green, was a drug dealer, and that Crawley believed he was a
drug dealer when she committed the offense because “Crawley knew
that Green had no legitimate income and enjoyed a high-end
lifestyle of expensive homes, expensive cars, and hundred[s] of
thousands of dollars in cash.” The government alleged that
Crawley “personally received over $240,000 in cash from an
individual [Green] she believed was involved in drug dealing.
She wired payments, wrote checks, and otherwise facilitated the
2
The court expressed this concern when sentencing Crawley’s
co-defendants.
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laundering of much of these funds.” The government concluded
with the following recommendation:
In short, the Government believes that a significant
sentence of jail time is appropriate. The Court has
already expressed concerns as to why Crawley and
others in this case were not charged in a drug
conspiracy. As always, the Court can incorporate its
evaluation of Crawley’s criminal conduct in imposing
an upward departure under the advisory guidelines
and/or an upward variance under Section 3553 factors.
The Government believes a significant term of
incarceration is appropriate.
Crawley responded by asserting in her own written
memorandum that she had no direct knowledge that Green was
involved with drugs, and that she believed her son was proposing
a legitimate business venture when he asked her to help him buy
real estate using her good credit. She stated that she believed
he had the money to make the mortgage payments legitimately.
She denied that she had knowingly helped to launder drug
proceeds.
On the day before sentencing, the government submitted
a letter to the court disputing Crawley’s assertions that she
did not know Green was involved with drugs in connection with
the mortgage fraud and that she believed he had enough
legitimate income to make the mortgage payments. The government
represented that, in her post-arrest interview with law
enforcement officers, Crawley said she suspected that Green was
dealing drugs, and explained why she did. The government stated
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that it would not move for the additional one-level reduction
for acceptance of responsibility, and gave notice that it would
recommend a sentence of thirty months imprisonment.
At the sentencing hearing, the court noted that
Crawley had not been charged with a drug crime, but expressed
concern that she was denying any knowledge of her son’s
involvement with drug dealing, despite her statements to the
agents after her arrest. The government asked for a sentence of
thirty months, stating that it was released from its obligations
under the plea agreement because Crawley had breached the
agreement. The court determined that Crawley had not accepted
responsibility and had tried to conceal the extent of her
knowledge about the mortgage fraud. Nevertheless, the court
gave Crawley the two-level adjustment for acceptance of
responsibility recommended in the presentence report. Crawley’s
total offense level was thus 15 and her guideline range was
18-24 months. The court imposed a sentence of twenty-four
months.
“It is settled that a defendant alleging the
Government’s breach of a plea agreement bears the burden of
establishing that breach by a preponderance of the evidence.”
United States v. Snow, 234 F.3d 187, 189 (4th Cir. 2000).
However, when the defendant fails to raise the issue in the
district court, we review the issue for plain error. United
6
States v. McQueen, 108 F.3d 64, 65-66 & n.1 (4th Cir. 1997)
(citing United States v. Fant, 974 F.2d 559, 565 (4th Cir.
1992)). The appellant must show not only that the plea
agreement was breached, but also that “the breach was ‘so
obvious and substantial that failure to notice and correct it
affect[ed] the fairness, integrity or public reputation of the
judicial proceedings.’” McQueen, 108 F.3d at 66 & n.4 (quoting
Fant, 974 F.2d at 565). Crawley did not assert in the district
court that the government breached her plea agreement.
Consequently, her claim is reviewed for plain error.
“When a plea agreement 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 v. New York, 404 U.S. 257, 262
(1971). As this court has stated, the interpretation of a plea
agreement is rooted in contract law and each party should
receive the benefit of its bargain. United States v. Peglera,
33 F.3d 412, 413 (4th Cir. 1994) (citing United States v.
Ringling, 988 F.2d 504, 506 (4th Cir. 1993) (internal quotations
omitted)). However, because a defendant’s fundamental and
constitutional rights are implicated when he is induced to plead
guilty by reason of a plea agreement, this court analyzes a
breach of that agreement with greater scrutiny than in a
commercial contract. See McQueen, 108 F.3d at 66.
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Here, it appears that the government first breached
the plea agreement in its memorandum of April 1, 2008, when it
advocated a “significant sentence of jail time,” and suggested
that the court might wish to depart upward, without mentioning
that it had agreed to recommend a sentence at the low end of the
guideline range. At sentencing, the government again failed to
recommend a sentence at the low end of the guideline range as it
had promised to do.
The government argues that Crawley breached the
agreement by failing to accept responsibility and minimizing her
role in the criminal scheme, thus releasing the government from
its obligations under the agreement. However, the government
cannot unilaterally declare itself released from its obligations
under a plea agreement because the defendant has breached the
agreement. Only after a hearing and a judicial determination
that the defendant breached the agreement may the government be
released from the promises it made. United States v. Guzman,
318 F.3d 1191, 1196 (10th Cir. 2003); United States v. Frazier,
213 F.3d 409, 419 (7th Cir. 2000); United States v. Simmons,
537 F.2d 1260, 1261-62 (4th Cir. 1976). The government filed
its sentencing memorandum several weeks before Crawley filed her
own memorandum, apparently in reaction to comments made by the
judge in a related proceeding rather than anything Crawley had
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done or said at that point. 3 The government never mentioned its
obligation to recommend a sentence at the low end of the range,
either in its written submissions to the court or at the
sentencing hearing. While the government stated at sentencing
that Crawley had breached the agreement, and the court appeared
to accept this explanation for the government’s sentence
recommendation, the court made no determination that Crawley had
in fact breached the agreement, the basis for the alleged
breach, or when the breach might have occurred.
Although it is not clear that the district court would
have imposed a different sentence if the government had kept its
promise, Crawley did not receive the benefit of her bargain.
Therefore, we are satisfied that she was prejudiced and that the
government’s breach constitutes plain error that should be
addressed on appeal. “[A] government that lives up to its
commitments is the essence of liberty under law, [and] the harm
generated by allowing the government to forego its plea bargain
3
Co-defendant David Lincoln’s sentencing hearing began on
March 20, 2008, and concluded on April 2, 2008. Co-defendant
Rachel Donegan was sentenced on March 18, 2008. The government
filed its sentencing memorandum in Crawley’s case on
April 1, 2008. Crawley filed her sentencing memorandum on April
23, 2008, and was sentenced on April 24, 2008. The government
replied to her memorandum in a letter to the court filed
April 24, 2008.
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obligations is one which cannot be tolerated.” Peglera, 33 F.3d
at 414.
Accordingly, we vacate the judgment and remand the
case for resentencing before a different judge. We dispense
with oral argument because the facts and legal contentions are
adequately presented in the materials before the court and
argument would not aid the decisional process.
VACATED AND REMANDED
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