United States v. Crawley

ON REHEARING

UNPUBLISHED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)

Argued: November 2, 2009 Decided: January 11, 2010

Before TRAXLER, Chief Judge, and DUNCAN and AGEE, Circuit
Judges.

Affirmed by unpublished per curiam opinion.

ARGUED: Flynn Marcus Owens, Baltimore, Maryland, for Appellant.
Kwame Jangha Manley, OFFICE OF THE UNITED STATES ATTORNEY,
Baltimore, Maryland, for Appellee. ON BRIEF: Jack B. Rubin,
RUBIN & OWENS, Baltimore, Maryland, for Appellant. Rod J.
Rosenstein, United States Attorney, Baltimore, Maryland, for
Appellee.

Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

I.

Yolanda Crawley pled guilty to one count of wire fraud in

violation of 18 U.S.C.A. § 1343 (West Supp. 2008). Crawley and

the government stipulated in a plea agreement (“the Agreement”)

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. The Agreement further provided that the government

“does not oppose a two-level reduction” for acceptance of

responsibility pursuant to U.S. Sentencing Guidelines Manual §

3E1.1 (2007), and that Crawley was eligible for an additional

one-level reduction under § 3E1.1(b). 1 J.A. 13.

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 its terms, the

government would be released from its obligations under the

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).

2
Agreement and would be free to recommend any sentence that it

considered appropriate. The Agreement provided that Crawley

would be in breach 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.” J.A. 15.

In the presentence report (“PSR”), 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 the three-level

adjustment under § 3E1.1, the recommended offense level was 14

and Crawley was in criminal history category I. The recommended

advisory guideline range was thus 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 PSR, 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 the district

court “has expressed concerns about the nature of these crimes

3
and their facilitation of drug-related activities.” 2 J.A. 46.

The government asserted that Crawley believed Green 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.” J.A. 46. 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

laundering of much of these funds.” J.A. 50. 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.

J.A. 51-52.

Crawley responded by asserting in her own sentencing

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

2
The district court apparently expressed these concerns
when sentencing Crawley's co-defendants.

4
real estate using her good credit. She stated that she believed

he had the money to make the mortgage payments legitimately and

denied that she had knowingly helped to launder drug proceeds.

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 harbored such suspicions.

The government stated that it would not move for the additional

one-level reduction for acceptance of responsibility and gave

notice that it would recommend an above Guidelines sentence of

thirty months imprisonment.

At the sentencing hearing, the district 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 the thirty-

month sentence, stating that it was released from its

obligations under the Agreement because Crawley had breached its

terms. The district court determined that Crawley had not

accepted responsibility and had tried to conceal the extent of

5
her knowledge about the mortgage fraud. Nevertheless, the court

awarded Crawley the two-level adjustment for acceptance of

responsibility recommended in the presentence report but, absent

the government’s request, did not award the one-level reduction

pursuant to § 3E1.1. Crawley's total offense level was thus 15

with a guideline range of 18-24 months instead of the 15-21

months set out in the PSR. The district court imposed a

sentence of twenty-four months and ordered restitution.

On appeal, Crawley argued for the first time that the

government breached the 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 Agreement. We agreed

that the government failed to fulfill its obligation under the

Agreement’s terms, concluded that Crawley had shown prejudice

under the plain error standard of review, vacated the sentence

and remanded the case for resentencing before a different judge.

United States v. Crawley, 321 F. App'x 310 (4th Cir. March 30,

2009) (No. 08-4568).

The government filed a timely petition for rehearing, not

contesting our finding that it breached the Agreement, but

contending that the breach itself might not constitute prejudice

under Puckett v. United States, 129 S. Ct. 1423, 1432 (2009).

Pursuant to Local Rule 41(d)(1) we stayed the mandate, granted

the petition for rehearing and directed the parties to file

6
supplemental briefs addressing whether, in light of Puckett,

“the government’s breach of the plea agreement constitutes

prejudice to the defendant.” J.A. 39. We now conclude that

Crawley has not made the necessary showing of prejudice.

II.

In Puckett, the defendant pled guilty pursuant to the terms

of a plea agreement and, assuming he complied with its terms,

the government agreed to request a three-level reduction for his

acceptance of responsibility. 3 Id. at 1426-27. Between the time

of the plea and his sentencing almost three years later, the

defendant engaged in additional criminal conduct. Id. at 1427.

Despite having filed a motion requesting the three-level

reduction in offense level “a long time” prior to the sentencing

hearing, the government made clear that it now opposed any such

reduction. Id.

The district court stated that even if it possessed the

discretion to grant the reduction in offense level, it would not

do so. Id. Nonetheless, the district court adopted the

government’s recommendation pursuant to the plea agreement and

sentenced the defendant at the low end of the applicable

3
This three-level reduction included the one-level
reduction pursuant to § 3E1.1.

7
advisory guidelines range as calculated, but without the benefit

of the three-point reduction. Id. At no time did the defendant

object that the government had violated its obligations by

failing to request the three-level reduction or move to withdraw

his plea. Id.

On appeal to the Fifth Circuit the government, as in this

case, conceded it had breached the plea agreement but asserted

that by failing to raise the issue in the district court the

defendant had forfeited any such claim on appeal. Id. at 1427-

28. Applying the plain error standard set forth in Rule 52, the

Court of Appeals held that regardless of the government’s

breach, the defendant “had not satisfied the third prong of the

plain-error analysis by demonstrating that the error affected

his substantial rights, i.e., caused him prejudice.” Id. at

1428. 4

4
In Olano the Supreme Court explained that

(Continued)
8
 On appeal from the Fifth Circuit, the Supreme Court held

that the plain-error test set forth in Rule 52(b) “applies to a

forfeited claim . . . that the Government failed to meet its

obligations under a plea agreement.” Id. As part of its

analysis the Supreme Court specifically rejected the defendant’s

assertion that the third prong of plain error review, the

prejudice prong, did not apply because “plea-breach claims fall

within ‘a special category of forfeited errors that can be

Rule 52(b) review-so-called “plain-error
review”-involves four steps, or prongs.
First, there must be an error or defect-some
sort of “[d]eviation from a legal rule”-that
has not been intentionally relinquished or
abandoned, i.e., affirmatively waived, by
the appellant. Id., at 732-733, 113 S.Ct.
1770. Second, the legal error must be
clear or obvious, rather than subject to
reasonable dispute. See id., at 734, 113
S.Ct. 1770. Third, the error must have
affected the appellant's substantial rights,
which in the ordinary case means he must
demonstrate that it “affected the outcome of
the district court proceedings.” Ibid.
Fourth and finally, if the above three
prongs are satisfied, the court of appeals
has the discretion to remedy the error-
discretion which ought to be exercised only
if the error “‘seriously affect[s] the
fairness, integrity or public reputation of
judicial proceedings.’” Id., at 736, 113
S.Ct. 1770 (quoting United States v.
Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391,
80 L.Ed. 555 (1936)).

Puckett, 129 S. Ct. at 1429.

9
corrected regardless of their effect on the outcome.’” 129 S.

Ct. at 1432 (quoting United States v. Olano, 507 U.S. 725, 735

(1993)). The Court saw “no need to relieve the defendant of his

usual burden of showing prejudice” because doing so would

nullify Olano’s “instruction that a defendant normally ‘must

make a specific showing of prejudice’ in order to obtain

relief.” Id. at 1433.

III.

Prior to granting rehearing, we held that “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.” 321

F. App'x at 313–14. Despite Crawley’s arguments to the

contrary, Puckett dictates a different result.

The defendant in Puckett argued that “[w]hen the Government

breaks a promise that was made to a defendant in the course of

securing a guilty plea, the knowing and voluntary character of

that plea retroactively vanishes, because (as it turns out) the

defendant was not aware of its true consequences.” Puckett, 129

S. Ct. at 1429. Accordingly, an appellate court “must always

correct the error.” Id. at 1430. The Supreme Court rejected

this argument because “the Government's breach of a plea

agreement [does not] retroactively cause[] the defendant's

10
agreement to have been unknowing or involuntary.” Id. The

Court went on to explain that

[t]he defendant whose plea agreement has been
broken by the Government will not always be able to
show prejudice, either because he obtained the
benefits contemplated by the deal anyway (e.g., the
sentence that the prosecutor promised to request) or
because he likely would not have obtained those
benefits in any event (as is seemingly the case here).

Id. at 1432–433.

In Puckett, the Supreme Court plainly rejected the view

that the government’s breach of a plea agreement constitutes de

facto prejudice. “[T]he question with regard to prejudice is

not whether [the defendant] would have entered the plea had he

known about the future violation. When the rights acquired by

the defendant relate to sentencing, the “‘outcome’” he must show

to have been affected is his sentence.” Id. at 1433 n.4 (2009).

Therefore, our previous conclusion that Crawley satisfied the

prejudice prong merely because she “did not receive the benefit

of her bargain” was incorrect. See id. (“It is true enough that

when the Government reneges on a plea deal, the integrity of the

system may be called into question, but there may well be

countervailing factors in particular cases.”); United States v.

Massenburg, 564 F.3d 337, 344 (4th Cir. 2009) (“It is rare that

an error is presumed prejudicial under the plain error standard

of review.”). As Crawley acknowledges, she must “demonstrate

11
that the Government’s breach affected the outcome of the

sentence she received.” Supp. Brief of Appellant at 9.

Crawley asserts that the facts in Puckett are “in stark

contrast” to her case in that Puckett involved continued

criminal activity by the defendant after his plea. Such action

precluded a finding of prejudice because “the District Court

likely would have declined to grant the reduction in any event,”

even if the government had not breached its agreement. Supp.

Brief of Appellant at 8; see Puckett, 129 S. Ct. at 1433 (“Given

that [the defendant] obviously did not cease his life of crime,

receipt of a sentencing reduction for acceptance of

responsibility would have been so ludicrous as itself to

compromise the public reputation of judicial proceedings.”).

Crawley argues that because she did not “perpetrate[]. . . such

outrageous conduct pending disposition,” the district court

might have imposed a reduced sentence if the Government had so

moved. Supp. Brief of Appellant at 8-9. The district court’s

own statements, however, clearly indicate otherwise.

During the sentencing hearing the district court told

Crawley that “if for some reason somebody should say that I

should have given the extra point, I would have sentenced you

above the [sentencing] guidelines.” J.A. 99. This statement

plainly indicates that the government’s failure to seek the

12
additional one-point reduction pursuant to § 3E1.1(b), although

a breach of the plea agreement, did not prejudice Crawley. 5

In short, it is Crawley’s burden to “make a specific

showing of prejudice.” Olano, 507 U.S. at 735. She “must show

that an error occurred, that the error was plain, and that it

affected [her] substantial rights.” United States v. Jeffers,

570 F.3d 557, 569 (4th Cir. 2009) (citing Olano, 507 U.S. at

732); Massenburg, 564 F.3d at 342-43 (stating that defendant

bears burden of establishing each of the plain error

requirements). Crawley has not met this burden and is not

entitled to relief.

IV.

For the foregoing reasons we affirm Crawley’s sentence as

imposed by the district court.

AFFIRMED

5
Crawley also argues that “the Government would hold [her]
to the insurmountable task of proving that her sentence would
have been different but for its breach.” Supp. Brief of
Appellant at 9 (emphasis added). Citing Massenburg, Crawley
asserts that she only needs to “show a reasonable probability
that her sentence would have been different but for the breach.”
Id. at 10. In light of the district court’s explicit statement
however, Crawley cannot show prejudice under either standard.

13