United States Court of Appeals
For the First Circuit
No. 00-2460
UNITED STATES OF AMERICA,
Appellee,
v.
JAMES R. RIGGS, JR.,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
Before
Boudin, Chief Judge,
Torruella and Selya, Circuit Judges.
Tina Schneider, for appellant.
Margaret D. McGaughey, Appellate Chief, with whom Paula D.
Silsby, United States Attorney, were on brief, for appellee.
April 24, 2002
TORRUELLA, Circuit Judge. Defendant James R. Riggs, Jr.,
pursuant to a plea agreement, pled guilty to one count of
conspiracy to distribute cocaine base. The district court
sentenced defendant to 235 months' imprisonment and five years'
supervised release. The defendant hereby appeals his sentence.
Because we find that the government breached the plea agreement, we
reverse and remand the case to permit the defendant an opportunity
to withdraw his guilty plea.
I.
In January of 2000, a federal grand jury indicted the
defendant on two counts: conspiracy to distribute and possess with
intent to distribute cocaine and cocaine base, in violation of 21
U.S.C. §§ 841(a)(1), 841(b)(1)(A), and 846 (Count I); and
distribution of cocaine base, in violation of 21 U.S.C. §§
841(a)(1) and 841(b)(1)(B) (Count VI).1 The indictment did not
specify any drug amounts.
In March of 2000, the defendant entered into a plea
agreement with the government under which he agreed to plead guilty
to Count I in exchange for the government's promise to dismiss
Count VI after sentencing on Count I. Pursuant to Federal Rule of
Criminal Procedure 11(e)(1)(B), the agreement also provided that
the parties would jointly "recommend to the Court at the time
sentence is imposed that the Defendant be sentenced on the basis of
a drug quantity of five to fifty grams of cocaine base or its
1
The indictment contained other counts, directed at Riggs' co-
defendants, which are immaterial to this appeal.
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marijuana equivalent." The agreement explicitly specified that
such recommendation was non-binding on the court. The plea
agreement further stated that the mandatory minimum sentence
applicable to the defendant was five years' imprisonment.
On March 15, 2000, the district court held a Rule 11
hearing at which it accepted the defendant's plea of guilty to
Count I. The court informed the defendant that under his plea he
was subject to a five-year mandatory minimum sentence.
Subsequent to the Rule 11 hearing, the Probation Office
prepared a Presentence Investigation Report ("PSR"). The PSR
recommended a sentence based on a drug quantity of 480 grams of
cocaine base, producing a base offense level of 34, and a three-
level downward adjustment for acceptance of responsibility,
bringing defendant's total offense level to 31. The PSR, based on
a Criminal History Category ("CHC") of VI, calculated the
appropriate guideline range to be 188 to 235 months. Neither party
objected to the findings contained in the PSR.2
On September 21, 2000, the court held a presentence
conference. The court questioned the parties as to the PSR's
recommended drug quantity, and neither party objected. The court
then agreed with the PSR that a drug quantity of 480 grams would
result in a guideline range of 188 to 235 months for a defendant
with a CHC of VI.
2
Two revised PSRs were issued, but neither included any changes
that affected the PSR's recommended sentence. Neither party
objected to either of the revised PSRs.
-3-
The sentencing hearing was held on September 27, 2000.
The prosecutor stated to the court that the applicable guideline
range was 188 to 235 months and that he was "asking for a sentence
of 200 months." Defense counsel opined that "188 months is
plenty." Neither the prosecutor nor defense counsel ever
recommended at the time of sentencing (or at any previous time)
that the defendant's sentence be calculated based on a drug amount
of five to fifty grams, as expressly required by the plea
agreement.
The district court accepted the plea agreement,
concluded that the applicable guideline range was 188 to 235
months, based on a total offense level of 31 and a CHC of VI, and
sentenced defendant to 235 months' imprisonment and five years'
supervised release. The court, after having to remind the
government to move to dismiss, then dismissed Count VI.
The defendant never raised any objection to his sentence
before the district court. However, the defendant appeals his
sentence to this Court and seeks to withdraw his plea, alleging
that the government breached the plea agreement.3
II.
"When a defendant has knowledge of conduct ostensibly
amounting to a breach of a plea agreement, yet does not bring that
breach to the attention of the sentencing court, we review only for
3
The defendant also appeals on grounds of ineffective assistance
of counsel, violation of Rule 11, and violation of Apprendi v. New
Jersey, 530 U.S. 466 (2000). Because we are reversing and
remanding on other grounds, we do not address these arguments.
-4-
plain error." United States v. Saxena, 229 F.3d 1, 5 (1st Cir.
2000). To establish plain error, a defendant must demonstrate
that: (1) there was error; (2) the error was plain; (3) the error
affected the defendant's substantial rights; and (4) the error
adversely impacted the fairness, integrity, or public reputation of
judicial proceedings. See United States v. Olano, 507 U.S. 725,
732-36 (1993); Saxena, 229 F.3d at 5.
III.
"[W]hen a 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 v. New York, 404 U.S. 257, 262 (1971).
"Because plea bargaining requires defendants to waive fundamental
constitutional rights, we hold prosecutors engaging in plea
bargaining to 'the most meticulous standards of both promise and
performance.'" United States v. Vélez Carrero, 77 F.3d 11, 11 (1st
Cir. 1996) (quoting United States v. Clark, 55 F.3d 9, 12 (1st Cir.
1995)).
In this case, the government fell woefully short of
satisfying these "meticulous standards." Although the plea
agreement bound the government to recommend a sentence based on a
drug quantity of five to fifty grams, the government utterly failed
to do so.4 Instead, the government accepted the PSR's
4
We note that the government was not the only party guilty of
inattentive lawyering. Defense counsel, pursuant to the plea
agreement, also had a duty to recommend such a sentence, but failed
to do so. Moreover, defense counsel, for no apparent reason other
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recommendation that 480 grams of cocaine base be attributed to the
defendant. Consequently, the prosecutor stated that the guideline
range was 188 to 235 months5 and that he recommended a sentence of
200 months. The prosecutor never mentioned during sentencing the
plea agreement, the five to fifty grams drug quantity, or another
guideline range that corresponded to this drug quantity.6 Thus,
the government failed to satisfy its obligation under the plea
agreement.7
than ineptitude, also failed to object at any point to the sentence
imposed or to the drug quantity attributed to his client.
5
The guideline range was calculated based on a base offense level
of 34, see U.S.S.G. § 2D1.1(c)(3) (applying to drug quantities of
at least 150 but less than 500 grams of cocaine base), a three-
level adjustment for acceptance of responsibility, see U.S.S.G. §
3E1.1, and a CHC of VI.
6
A drug quantity of five to fifty grams of cocaine base could
result in several possible guideline ranges. A drug quantity of at
least 5 grams but less than 20 grams results in a base offense
level of 26. See U.S.S.G. § 2D1.1(c)(7). Taking into account the
three-level adjustment for acceptance of responsibility and a CHC
of VI, this would result in a guideline range of 92 to 115 months.
A drug quantity of at least 20 grams but less than 35 grams results
in a base offense level of 28, see U.S.S.G. § 2D1.1(c)(6), and
taking into account the same factors as above, a resulting
guideline range of 110 to 137 months. A drug quantity of at least
35 grams but less than 50 grams results in a base offense level of
30, see U.S.S.G. § 2D1.1(c)(5), and a corresponding guideline range
of 130 to 162 months. A drug quantity of exactly 50 grams produces
a base offense level of 32, see U.S.S.G. § 2D1.1(c)(4), and results
in a guideline range of 151 to 188 months. Thus, if the government
had recommended a sentence within these guideline ranges (i.e., 92
to 188 months), its recommendation arguably could have satisfied
the promise in the plea agreement.
7
Moreover, we note that the prosecutor did not even move to
dismiss Count VI, as he was obligated to do under the plea
agreement, until the district court reminded him. This reminder
should have been unnecessary.
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The critical issue before us, however, is whether the
government's breach of the agreement amounts to plain error under
the Olano standard. Although plain error review usually applies to
errors committed by the court, we have also assessed governmental
breaches of plea bargains, in the absence of a contemporaneous
objection, under this same standard. See Saxena, 229 F.3d at 5.
Beyond a plain violation of the plea agreement, the
defendant must show that the government's breach was prejudicial.
See Olano, 507 U.S. at 734 (noting that, to affect substantial
rights, the error must be prejudicial). Although a defendant
usually demonstrates prejudice by proving that the error affected
the outcome of the proceedings, see id., a defendant alleging a
breached plea agreement on appeal need not go so far. See Clark,
55 F.3d at 13-14 (stating that prosecutor's failure to abide by
plea agreement, even if did not affect the defendant's sentence, is
not harmless error); Correale v. United States, 479 F.2d 944, 949
(1st Cir. 1973) (finding that prosecutor's breach of plea agreement
"is not rendered harmless because of judicial refusal to follow the
recommendation or judicial awareness of the impropriety"). In a
plea agreement, the defendant is bargaining for "the prestige of
the government and its potential to influence the district court."
Vélez Carrero, 77 F.3d at 12. When the prosecutor fails to fulfill
the agreement, the defendant is prejudiced because his rights are
violated. See Correale, 479 F.2d at 949 (noting that waiver of
rights, in exchange for prosecutor's statements, is ineffective
when agreement is violated).
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That said, minor deviations will not void a plea bargain.
See Clark, 55 F.3d at 13 n.3 (opining that violation of terms not
inducing the plea will be considered harmless); Correale, 479 F.2d
at 947. Were it clear, for example, that the court had been fully
aware of the recommendation at sentencing, the mere failure by the
government to present it orally might not prove prejudicial.
Compare United States v. Flores-Sandoval, 94 F.3d 346, 352 (7th
Cir. 1996) (finding that failure to orally state terms of
agreement, of which court was aware, would not be sufficient to
show prejudice to defendant), with United States v. Barnes 278 F.3d
644, 647-48 (6th Cir. 2002) (stating that government's failure "to
expressly request" terms of plea agreement can constitute
prejudicial error, even where court knew terms of agreement and
would have rejected recommendation). Here the district judge
acknowledged the government's intended recommendation at the Rule
11 hearing, but several months elapsed between the hearing and
sentencing, and it is unclear whether the court deliberately
rejected the government's recommendation or simply forgot about it
during the intervening time.8 As a result, the government's
failure to abide by the plea bargain was not a mere "technical"
breach. Cf. United States v. Pryor, 957 F.2d 478, 482 (7th Cir.
1992) (failing to inform court of information relevant to plea, of
8
At sentencing, the district judge stated, "The Court will accept
the plea agreement in this matter." The court's statement, though,
seems to refer only to the government's promise to dismiss Count
VI, since the court did not impose a sentence that corresponded
with the promised drug-quantity recommendation.
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which court already is aware, is "technical violation" that does
not amount to plain error).
In addition to being prejudicial, the government's breach
of the plea agreement meets the fourth prong of the Olano test:
[B]ecause violations of plea agreements on the
part of the government serve not only to
violate the constitutional rights of the
defendant, but directly involve the honor of
the government, public confidence in the fair
administration of justice, and the effective
administration of justice in a federal scheme
of government, we hold that the Government's
breach constituted plain error.
United States v. McQueen, 108 F.3d 64, 66 (4th Cir. 1997); accord
Barnes, 278 F.3d at 647-48.
IV.
As a result of the government's breach of the plea
agreement, exacerbated by defense counsel's performance, we reverse
and remand the case to allow the defendant to withdraw his guilty
plea.
Reversed and remanded.
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