IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-20175
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY RAY CARTER,
Defendant-Appellant,
_______________________
Appeal from the United States District Court
for the Southern District of Texas
(01-CR-396)
January 7, 2003
Before GARWOOD, JONES, and STEWART, Circuit Judges.*
GARWOOD, Circuit Judge:
Defendant-appellant Anthony Ray Carter (Carter) appeals his
sentence. We vacate and remand for resentencing.
Facts and Proceedings Below
Carter appeals his sentence following his guilty plea to
*
Pursuant to 5TH CIR. R.47.5 the Court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5TH CIR. R. 47.5.4.
engaging in a consensual sexual act with a female inmate under his
custody, supervision, and disciplinary authority as a Federal
Bureau of Prisons correctional officer at the Federal Detention
Center in Houston, Texas, in violation of 18 U.S.C. § 2243(b).
In a July 13, 2001 plea agreement, Carter waived his right to
trial, judgment and sentencing before a United States District
Judge, and consented to trial before a United States Magistrate
Judge. The offense to which Carter pled guilty was a class A
misdemeanor, which carried a range of imprisonment not to exceed
one year. In the plea agreement, “the United States agrees . . .
to remain mute at sentencing regarding any sentence which the
United States may deem appropriate.”
The Probation Officer calculated the Sentencing Guideline
range at a base offensive level 9 under USSG §2A3.3, plus a two
level increase for submitting a materially false written statement
in the form of a sworn affidavit under USSG §3C1.1, less a two
level reduction for acceptance of responsibility under USSG
§3E1.1(a). Carter had no previous arrests or convictions and his
criminal history category was scored at level I, which placed him
in a sentencing range of four to ten months and, as the Presentence
Report (PSR) reflected, he was eligible for probation. The PSR
noted that there was no basis for departure from the guidelines.
Neither the government nor Carter filed any objection to the PSR.
Carter, however, filed a sentencing memorandum requesting
2
probation, supported by a letter from his wife.1 At the sentencing
hearing, Carter urged the Magistrate Judge to grant him probation.
The Magistrate judge adopted the PSR. The Magistrate Judge
declined to grant probation and sentenced Carter to six months’
imprisonment, with the condition that he participate in a mental
health program during imprisonment, one year supervised release, a
$1,000 fine, and a $25 special assessment.
The Probation Office had received a letter from the Warden at
the Houston prison facility where Carter was employed and where the
conduct at issue occurred. The letter is on official letterhead
carrying at its top the printed legend “U.S. Department of Justice”
and just beneath that “Federal Bureau of Prisons.” Following a
discussion of the negative consequences of staff-inmate sexual
relationships, the Warden’s letter stated, “When a conviction is
secured, a sentence of imprisonment is critical if the prosecution
is to deter future crimes” and “It is my hope that the sentence
imposed will include a period of imprisonment.” A copy of this
letter was sent by the Warden to the U.S. Attorney several months
prior to sentencing but was not sent (nor shown as sent) to Carter
or his counsel. The probation officer furnished the letter to the
Magistrate Judge, but not to Carter or his counsel. The PSR quoted
portions of the letter, but not the portions recommending
1
The PSR had noted that the wife had filed for divorce and was not
supportive of the defendant; in the subsequent letter attached to the
defense motion, the wife requested a probated sentence and wrote very
supportively of the defendant.
3
incarceration. The PSR introduced its quote from the letter by
stating, “The warden's words, without revealing the type of
sentence he advocates in this case, are as follows.” Carter and
his counsel were unaware that the Warden had made any sentencing
recommendation.
At the sentencing hearing, the Magistrate Judge, following
defense counsel’s request for probation, stated:
“But the Court must consider whether or not it’s
appropriate to place you on probation or to order a
period of incarceration back to the Bureau of Prisons who
has indicated in – to probation in a document that you
should be incarcerated.” (emphasis added)2
Carter's attorney then objected, stating that he had not seen
the document to which the Magistrate referred, that the PSR did not
indicate that the Warden’s letter had taken any position regarding
sentencing, and that any such statement would constitute a breach
of the plea agreement.
Defense counsel then asked to be shown a copy of the letter;
the letter was furnished to him and a brief recess was taken.
Following the recess defense counsel reiterated his objection that
submission to the Magistrate Judge of the portions of the Warden’s
letter recommending a sentence of imprisonment constituted a breach
of the plea agreement’s provision that the United States would
remain mute at sentencing regarding any sentence which the United
2
The prosecutor had earlier called the court’s attention to the
fact that the Warden was in the courtroom.
4
States may deem appropriate. Defense counsel also called attention
to the fact that the statement in the letter that “[w]hen a
conviction is secured, sentence of imprisonment is critical if the
prosecution is to deter future crimes” was highlighted.3 Defense
counsel then stated “I would ask the Court to reconsider its
decision of imprisonment . . . you can impose up to five years
probation . . . I would withdraw the objection if that is done.”
The prosecutor responded by stating:
“Your Honor, the United States did not direct that
letter. The United States stands by its plea agreement.
And I am here on behalf of the United States to represent
to the Court that we are not recommending any appropriate
sentence because we agreed to remain mute.”
The Magistrate Judge declined to grant probation, and imposed
a six month term of imprisonment, followed by a one year term of
supervised release, and a $1,000 fine, observing that the probation
officer had recommended ten months’ imprisonment. The Magistrate
Judge also remarked:
“I’m not giving a whole lot of credence to what the
Bureau of Prisons says. Because you’re right, the United
States agreed to stand mute in this case. Except from
that, this letter aside can be considered as null and
void as far as I’m concerned. I’m looking at the
recommendations that have been made to me by the
probation department.”
3
The Magistrate Judge later–in a bond hearing a few weeks after
sentencing–observed that he personally had highlighted these remarks,
stating “Those highlights are mine. . . . I highlight things I want to
focus on because of vision obscurity.” (emphasis added).
The Magistrate Judge granted Carter bond pending appeal, noting
that the breach of plea agreement issue was “an issue where reasonable
jurists could differ.”
5
Likewise at the post-sentence bond hearing, the Magistrate Judge
observed respecting the Warden’s letter “whatever he says, has no
impact on my thinking.”
Carter appealed to the district court, asserting that the
Warden's letter recommending a prison term breached the plea
agreement’s provision that the United States would take no position
regarding the appropriate sentence. The District Court determined
the letter violated the plea agreement because, although the U.S.
Attorney's Office and Bureau of Prisons are separate entities, they
both represent the singular government of the United States.
However, the District Court concluded that the breach was harmless
error under FED. R. CRIM. P. 52 because the Magistrate Judge
stated that he had disregarded the letter and based the sentence on
his own analysis of the facts. Pursuant to these findings, on
February 12, 2002, the District Court entered an order affirming
Carter's sentence. On February 13, 2002, Carter filed a timely
notice of appeal to this court.4
Discussion
The Government does not expressly challenge the district
court’s determination that challenged portions of the Warden’s
letter breached the plea agreement. The only issue mentioned by
the United States in its brief is “[w]hether the District Court
4
We have jurisdiction of the appeal under 28 U.S.C. § 1291. United
States v. Garrett, 984 F.2d 1402, 1405 (5th Cir. 1993).
6
correctly found that the United States’ breach of a plea agreement
was harmless error,” its brief states that “the United states did
not appeal the District Court’s finding that a breach occurred,”
and its brief concludes by stating that “the opinion issued by
District Court on appeal from the judgment of conviction and
sentence entered by the Magistrate Judge should be affirmed in
their entirety.”5 Accordingly, we proceed on the assumption that
the government did breach the plea agreement. That is not a wholly
unreasonable assumption, as the Bureau of Prisons is a part of the
Department of Justice6 and to determine “whether the plea agreement
has been breached, we inquire whether the government’s conduct ‘is
consistent with the defendant’s reasonable understanding of the
agreement.’” United States v. Reeves, 255 F.3d 208, 210 (5th Cir.
2001). Accord: United States v. Saling, 205 F.3d 764, 766 (5th
Cir. 2000); United States v. Carter, 185 F.3d 298, 304 (5th Cir.
5
We also note that the plea agreement contained a waiver of appeal
(none of the exceptions to which are applicable). The government has
not invoked the agreement’s waiver of appeal in this court, which is
consistent with its failure to challenge the district court’s
determination that it breached the plea agreement. The government’s
breach of a plea agreement precludes its invocation of a provision
therein by which the defendant waives appeal rights, regardless of
whether the government’s breach resulted in prejudice to the defendant.
See United States v. Keresztury, 293 F.3d 750, 755-57 (5th Cir. 2002).
6
We note, however, that the plea agreement states that it “binds
only the United States Attorney’s Office for the Southern District of
Texas and the defendant. It does not bind any other United States
Attorney.” Neither the government’s brief nor Carter’s cites this
provision of the plea agreement.
7
1999); United States v. Valencia, 985 F.2d 758, 761 (5th Cir.
1993).
Turning to the issue of harmless error, we note that when the
government breaches a plea agreement the defendant has the option
to either withdraw his plea, in which case the government is no
longer bound by the agreement, or to enforce specific performance
by having resentencing before another judge. Saling, 205 F.3d at
767-68 (5th Cir. 2000); United States v. Palomo, 998 F.2d 253, 256
(5th Cir. 1993). See also Santabello v. New York, 92 S.Ct. 495,
499 (1971); Valencia at 761. Here the defendant has consistently
sought specific performance and the government has never urged that
withdrawal of the plea is the only appropriate relief to which the
defendant would be entitled.
The district court concluded resentencing was inappropriate
and the breach of the plea agreement was harmless because the
Magistrate Judge “stated that he was basing the sentence on his own
analysis of the facts, and gave his analysis for the record” and
“was more lenient than the probation office recommended and had
individual reasons–though coincident with the Warden’s–to impose a
prison sentence.” However, it is undisputed that the Magistrate
Judge was aware at sentencing of, and considered in connection with
deciding whether to impose imprisonment or probation, the Warden’s
recommendation that imprisonment be imposed, and that the
Magistrate Judge had highlighted the sentence in the Warden’s
8
letter requesting a sentence of imprisonment because it was
something the Magistrate Judge “want[ed] to focus on.” Moreover,
although the Probation Officer recommended a term of imprisonment,
he did so after reading the Warden’s letter, and in any event the
Magistrate Judge ultimately decided to be more lenient than the
probation officer. Finally, the PSR and the Magistrate Judge
correctly recognized that probation was an available option under
the guidelines and did not require a departure.
In these circumstances, while we cast no doubt on the veracity
and good faith of the Magistrate Judge’s statements that he was
ultimately wholly uninfluenced by the Warden’s recommendation,
application of the harmless error rule would be contrary to
Santabello v. New York, 92 S.Ct. 495 (1971), and our decisions
following it such as Valencia and Saling. For example, in
Santobello the prosecutor, in return for the defendant’s plea, had
“agreed to make no recommendation as to sentence,” but at
sentencing a new prosecutor recommended a one year sentence,
defense counsel objected that this was contrary to the plea
agreement but the court proceeded with sentencing stating “I am not
at all influenced by what the District Attorney says” and proceeded
to base his sentence on the facts stated in the probation officer’s
report. Id., 92 S.Ct. at 497. The Supreme Court held that the
breach of the plea agreement entitled the defendant to either
withdraw his plea or “be resentenced by a different judge”
9
notwithstanding its recognition that the sentencing judge had
“stated that the prosecutor’s recommendation did not influence him
and we have no reason to doubt that” and its statement “that this
is in no sense to question the fairness of the sentencing judge.”
Id., 92 S.Ct. at 499. We are not at liberty to depart from
Santabello.7
This is not a case where it can be objectively determined that
the breach could not have been harmful, as where the defendant
received the minimum lawful sentence, or where the guidelines
agreed to are not used but those employed are substantively
identical, United States v. Carmouche, 138 F.3d 1014, 1017 (5th
Cir. 1998), or where the information the prosecutor agreed to but
failed to furnish is furnished by the defense and confirmed by the
prosecutor at sentencing. United States v. Hooten, 942 F.2d 878,
884 (5th Cir. 1991).
We accordingly vacate Carter’s sentence and, as Carter has
requested, remand the cause for resentencing before another judge
(or magistrate judge), and further direct that a new PSR (omitting
any reference to the Warden’s letter) and new sentence
recommendation be prepared by a different probation officer and
that no consideration be given at any stage to the Warden’s letter
or previous probation department sentence recommendation.
7
That the resentencing must be before a different judge is likewise
clear from, for example, Valencia and Saling.
10
SENTENCE VACATED and CAUSE REMANDED with
directions for resentencing.
11