F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 6 1998
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
FOR THE TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 97-3163
LESTER ERVIN SMITH, JR.,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. No. 95-CR-40083-4)
Submitted on the briefs:
Michael G. Katz, Federal Public Defender, and Jill M. Wichlens, Assistant
Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
Jackie N. Williams, United States Attorney, and Gregory G. Hough, Assistant
United States Attorney, Topeka, Kansas, for Plaintiff-Appellee.
___________________________
Before ANDERSON, McKAY, and LUCERO, Circuit Judges.
___________________________
McKAY, Circuit Judge.
___________________________
After examining the briefs and the appellate record, this panel has
determined unanimously to grant the parties’ request for a decision on the briefs
without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.9. The case
is therefore ordered submitted without oral argument.
Pursuant to a plea agreement, Defendant, Mr. Lester Ervin Smith, pled
guilty to one count of conspiracy to possess with intent to distribute 50 grams or
more of cocaine base, in violation of 21 U.S.C. § 846. The plea agreement
stipulated that the government would: (1) recommend that Defendant receive a
three-level reduction for acceptance of responsibility pursuant to U.S. Sentencing
Guideline (U.S.S.G.) § 3E1.1; (2) recommend that Defendant receive a two-level
reduction for his minor role in the offense pursuant to U.S.S.G. § 3B1.2; (3)
recommend that Defendant not receive a two-level enhancement for possession of
a firearm pursuant to U.S.S.G. § 2D1.1(b)(1); (4) recommend that Defendant not
receive a two-level sentence enhancement for obstruction of justice pursuant to
U.S.S.G. § 3C1.1; and (5) if appropriate, file a motion for a substantial assistance
departure pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) recommending
that Defendant’s sentence not exceed one-half of the appropriately calculated
guideline range. See R., Vol. I, Doc. 459.
The Presentence Report (PSR) noted the government’s recommendations,
see R., Vol. IV at 7-8, but rejected the government’s position on the firearm
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enhancement and the minor-role reduction. See id. at 15-16. The PSR arrived at
a total offense level of 40, which included an enhancement for being a manager or
supervisor of an illegal enterprise. See id. at 16. The PSR did, however,
favorably incorporate the government’s recommendations on the acceptance of
responsibility and obstruction of justice adjustments. See id. The guideline
sentencing range for the recommended offense level of 40 and criminal history
category of IV is 360 months to life. See U.S. Sentencing Guidelines Manual
(Table). After the PSR was completed, the government filed a motion pursuant to
U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e) recommending that the Defendant be
sentenced to a term of imprisonment of 180 months. See Supplemental R., Vol. I,
Doc. 508. At the sentencing hearing, the court noted the statements in the PSR
concerning the government’s recommendations. See R., Vol. II at 3, 16. The
court stated that it would not impose the Probation Office’s proposed three-level
enhancement for an aggravated role in the offense. See id. at 3-4. The
sentencing court therefore calculated Defendant’s offense level as 37 and
sentenced the Defendant to 146 months of imprisonment, one-half of the lowest
sentence in the guideline range for that offense level. See id. at 17-18.
On appeal, Defendant contends that the government breached the plea
agreement by not arguing for the sentence adjustments it agreed to “recommend”
at the sentencing hearing. Defendant maintains that to fulfill the terms of the plea
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agreement, the government must do more than simply have the terms of the plea
agreement included in the PSR. See Appellant’s Br. at 7. We review the issue of
whether a plea agreement is violated de novo. See United States v. Hawley, 93
F.3d 682, 690 (10th Cir. 1996).
The core issue in this case is: Does the government breach a plea
agreement if it does not engage in persuasion at the sentencing hearing even
though the court is made aware of the government’s position by virtue of its
inclusion in the Presentence Report? We hold that the government did not breach
this plea agreement because the agreement did not expressly require government
allocution in favor of its recommendations.
The prosecutor agreed to perform five specific acts, i.e., to: (1) recommend
that Defendant receive a three-level reduction for acceptance of responsibility
pursuant to U.S.S.G. § 3E1.1; (2) recommend that Defendant receive a two-level
reduction for his minor role in the offense pursuant to U.S.S.G. § 3B1.2; (3)
recommend that Defendant not receive a two-level enhancement for possession of
a firearm pursuant to U.S.S.G. § 2D1.1(b)(1); (4) recommend that Defendant not
receive a two-level sentence enhancement for obstruction of justice pursuant to
U.S.S.G. § 3C1.1; and (5) file a motion for a substantial assistance departure
pursuant to U.S.S.G. § 5K1.1 and 18 U.S.C. § 3553(e). All of the agreed-upon
recommendations were reported in the PSR. See R., Vol. IV at 7-8. The
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government’s recommendations, contained within the Presentence Report, were
noted by the judge at the sentencing hearing. See R., Vol. II at 3, 16. We note
that the trial court did grant the government’s U.S.S.G. § 5K1.1 motion, while
rejecting the government’s other sentence adjustment recommendations.
The government fulfilled its obligation to recommend the sentencing
adjustments when those recommendations were considered, although rejected, in
the Presentence Report. The sentencing judge may exercise his discretion at
sentencing without transforming the prosecutor’s silence into a breach of the
agreement. Defendants should be advised that when there is no specific statement
in a plea agreement that the government must allocute in favor of its
recommendation(s) at a sentencing hearing, the government can satisfy the term
“recommendation” by having its recommendations included in the PSR, which is
then called to the attention of the sentencing court.
We hold that the term “recommendation” in a plea agreement does not
require the prosecutor to allocute in favor of specific adjustments in the
defendant’s sentence if the recommendations are contained in the PSR and the
prosecutor does not allocute against an agreed-upon adjustment. Accord United
States v. Maling, 942 F.2d 808, 810-11 (1st Cir. 1991); but see United States v.
Myers, 32 F.3d 411, 413 (9th Cir. 1994) (“The bargain that the defendant agreed
to was not a promise by the government to recommend, but the actual fact of
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recommendation. . . . It [is] insufficient that the court, by reading the presentence
report and the plea agreement, was aware [of the government’s
recommendation.]”). Courts routinely hold that prosecutors breach plea
agreements when they engage in condemnatory speech or contradictory acts at
sentencing. See, e.g., United States v. Peglera, 33 F.3d 412, 414 (4th Cir. 1994);
Brunelle v. United States, 864 F.2d 64, 65 (8th Cir. 1988); United States v.
Tobon-Hernandez, 845 F.2d 277, 279-80 (11th Cir. 1988). However, in the case
before us the only advocacy the prosecution undertook was to the benefit of
Defendant. No act of the government before or at sentencing could be read as
contrary to the position they agreed to support.
We hold that this plea agreement was not breached, and AFFIRM the
decision of the district court.
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