United States v. Bernard

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit

6-29-2004

USA v. Bernard
Precedential or Non-Precedential: Precedential

Docket No. 03-1378

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 PRECEDENTIAL 5500 Veterans Building, Suite 260
Charlotte Amalie
UNITED STATES COURT OF St. Thomas USVI, 00802-6924
APPEALS FOR THE THIRD CIRCUIT Counsel for Appellee
__________
__________
No. 03-1378
__________ OPINION OF THE COURT
__________
UNITED STATES OF AMERICA,
NYGAARD, Circuit Judge.
vs.
Rose Bernard pleaded guilty to
ROSE HAJAY BERNARD, possession of a false identification
document under a plea agreement that
Appellant. dropped much more serious drug charges.
__________ She claims on appeal that the District
Court erred by using the sentencing
ON APPEAL FROM THE DISTRICT guidelines that she agreed should apply.
COURT OF THE VIRGIN ISLANDS Guided by F ED. R. C RIM . P. 11(c)(1)(C),
(D.C. No. 01-cr-00233-2) we will hold Bernard to her bargain and
District Judge: The Honorable affirm the District Court *s sentence.
Thomas K. Moore
I.
__________
Rose Bernard is a Liberian citizen
ARGUED DECEMBER 10, 2003 with permanent resident status in the
United States. While going through
BEFORE: NYGAARD, BECKER, and customs at the airport in St. Thomas, U.S.
STAPLETON, Circuit Judges. Virgin Islands, she used a forged birth
certificate that indicated she was born in
(Filed: June 29, 2004) New York, falsely declared on a customs
form that she was a U.S. citizen, and
Douglas J. Beevers, Esq. (Argued) attempted to take through the customs
Office of Federal Public Defender checkpoint four liquor bottles filled with
P.O. Box 1327, 51B Kongens Gade more than five kilograms of liquid cocaine.
Charlotte Amalie
Bernard was arrested along with
St. Thomas USVI, 00804
two co-defendants, and indicted for
Counsel for Appellant
conspiracy to possess cocaine with intent
to distribute, conspiracy to import cocaine
Anthony J. Jenkins, Esq. (Argued)
into the United States, and four charges
Office of United States Attorney
related to using a fraudulent birth
United States Courthouse
certificate and making a false customs Bernard now contends that the
declaration. District Court erred by applying U.S.S.G.
§ 2D1.1, a guideline for drug offenses, in
On the fourth day of her trial, near
sentencing her for possession of a false
the conclusion of the government *s case,
identification document. The District
she negotiated a plea agreement. Bernard
Court applied that guideline using the
agreed to plead guilty to Court Five of the
cross-reference in § 2L2.2(c), which
indictm ent, possession of a f alse
directs that if the “defendant used a
identification document in violation of 18
passport or visa in the commission or
U.S.C. § 1028(a)(4), (b)(1)(A)(ii) and
attempted commission of a felony offense”
(b)(3)(A), and in excha nge, th e
the Court should apply § 2X1.1, which in
government dropped all other charges.
turn directs the Court to use the guidelines
Bernard also explicitly agreed to the
for the underlying felony offense. In
sentencing enhancement contained in 18
Bernard *s case, the underlying offense was
U.S.C. § 1028(b)(3)(A), which is
drug trafficking, the sentencing guidelines
applicable when the offense is committed
for which are found in § 2D1.1.
to facilitate a drug trafficking crime. She
also agreed to be sentenced under the Bernard argues that because she
guidelines that were applicable to the used only a fraudulent birth certificate, and
dismissed drug charges. not a “passport or visa” as required by §
2L2.2(c), the District Court erred by
A p p l y in g the drug -relate d
applying this cross-reference. She also
enhancement under § 1028(b)(3)(A)
contends that because the stipulation she
increased Bernard *s maximum sentence
made in her plea agreement did not
from 15 years to 20 years.1 Bernard was
specifically state that she had committed a
ultimately sentenced to 46 months in
drug offense, it was insufficient to support
prison, a sentence at the bottom of the 46-
the guidelines for drug offenses.
to-57-month range recommended by the
sentencing guidelines applicable under the We exercise plenary review over
plea agreement. the question of whether the terms of a plea
agreement have been violated. United
States v. Rivera, 357 F.3d 290, 294 (3d
1
Cir. 2004). We also exercise plenary
Bernard incorrectly states in her
review over the interpretation of the
brief that the effect of the enhancement
sentencing guidelines. United States v.
was to change the maximum sentence
McKenzie, 193 F.3d 740, 742 (3d Cir.
from 1 year to 20. As the government
1999). We review for plain error,
points out, that is clearly not the case,
however, when a defendant did not object
since 18 U.S.C. § 1028(b)(1)(A)(ii)
to a purported error before the sentencing
provides for a 15-year maximum
court. United States v. Couch, 291 F.3d
sentence for possession of a forged birth
251, 252-53 (3d Cir. 2002). To establish
certificate.

2
plain error, a defendant must prove that 1) Bernard *s agreement to certain sentencing
the court erred; 2) the error was obvious stipulations, the government*s attorney
under the law at the time of review; and 3) agreed to drop the charges of drug
the error affected the defendant*s importation and trafficking, by far the
substantial rights. Johnson v. United most serious charges in the indictment. It
States, 520 U.S. 461, 467 (1997). If these is clear from the record that the
conditions are met, then we may exercise government would not have accepted the
our discretion to notice the error if it plea without these sentencing stipulations.
“seriously affect[s] the fairness, integrity,
The record of the plea hearing
or pub lic repu tation o f judic ial
demonstrates that Bernard *s attorney was
proceedings.” Id. (internal quotation marks
well aware of the “error” about which he
and citations omitted) (alteration in
now complains. In fact, he raised the issue
original). Because we conclude that the
before the Court, but wh en the
District Court did not err, we do not reach
government’s attorney threatened to
the other prongs of the Johnson plain error
remove the plea offer, he explicitly
test.
stipulated to the application of § 2L2.2(c).
II. As the record indicates, this stipulation
was thoroughly discussed, and specifically
We need not, and do not, decide
agreed to by Bernard.
whether the District Court would have
erred had it applied the cross-reference Mr. Jenkins: [Deputy U.S.
under U.S.S.G. § 2L2.2(c) without the plea Attorney]: And just to
agreement. That is not the issue here. In further clarify, the cross-
the context of this case, the government reference referred to in the
and the defense stipulated in the plea plea agreement is United
agreement that the cross-reference should States Sentencing
apply. The sole issue before us on appeal Guidelines 2L2.2(c), where
is whether the District Court had the it speaks of a cross
authority to accept this plea agreement, reference. . . .
which stipulates to a factor or sentence that
falls outside the sentencing guidelines
range, and absent the agreement, would The Court: Alright. Do
not apply. you agree, Mr. Beevers?
Bernard entered her guilty plea
mid-trial, after the government had nearly
Mr. Beevers [Bernard *s
concluded its case against her and
Attorney]: Almost. My
presented, by her attorney* s own
position is it would be for
admission, “very strong evidence” that
the Court to determine,
Bernard had been involved in a drug
since the Guidelines don*t
conspiracy. S.A. at 29. In exchange for

3
expressly say a birth effect would be that it
certificate, the guidelines would be, sentencing would
would only go up after be as – under the Guidelines
Attorney Jenkins would for drug trafficking offense
make a motion for upward . . . . [T]he Guidelines
departure to invoke that would be the same if she
rule. had directly pled to the drug
trafficking offense. That*s
our understanding . . . [a]nd
And I would concede that he I*ll waive any argument that
has very strong evidence at a specific motion would be
this point that the higher required if you, if you need
enhancement – but that it, or I *ll actually make the
would ultimately be your motion, if you need it.
d e c i s io n , w h e t h e r t o
enhance.
The Court: Well, you *re
stipulating to it, as I
Mr. Jenkins: No, no, that*s understand.
not the deal. The deal is that
you*re going to stipulate that
as pursuant to 2L2.2 . . . or Mr. Beevers: Right.
we don *t have a plea
agreement . . .We *re not
going to argue about that. The Court: Do you
That*s going to be a understand all that, Ms.
stipulation. Bernard, the net effect of
what that is? (Defendant
conferring with counsel.)
Mr. Beevers: In that case,
we are stipulating that the
higher Guideline would Defendant Bernard: Yes, sir.
apply, and –

The Court: In essence, it*s
The Court: What *s the net what you initialed on
effect? Paragraph 8 on the plea
application, although you*re
not pleading to a . . . drug
Mr. Beevers: The net trafficking offense, the

4
 sentencing can be calculated exchange for these benefits, and as part of
in accordance, as if you had. the plea agreement, she stipulated to the
Do you understand that? applicability of U.S.S.G. § 2L2.2(c). To
now ignore that stipulation and not apply §
2L2.2(c) would contravene the clear intent
Defendant Bernard: Yes, sir. of both parties in entering into the plea
agreement.
S.A. 29-31.
III.
On this record, there is no reason to
doubt that the agreement to apply the § Having concluded that the
2L2.2(c) cross-reference was a tactical agreement that § 2L2.2(c) would be
decision that was designed to, and in fact applied is binding, we must determine
did, benefit Bernard significantly. As a whether the District Court could use the
result of the agreement, the government stipulated guideline for sentencing.
dropped two drug charges that would have
Federal Rule of Criminal Procedure
each carried mandatory minimum
11 regulates plea agreements, and
sentences of five years, in exchange for a
establishes that in return for a guilty plea,
plea to a far less serious crime without a
a government attorney may agree to
mandatory minimum sentence.2
dismiss other charges, make sentencing
Bernard incorrectly characterizes recommendations, or “agree that a specific
the issue in this case as a “failure to object sentence or sentencing range is the
to the pre-sentence report” and argues that appropriate disposition of the case, or that
she “was not trying to receive an a particular provision of the Sentencing
unlawfully high sentence.” Appellant*s Guidelines, or policy statement, or
Reply Br. at 8. What Bernard was trying sentencing factor does or does not apply.”
to do is clear – reach a compromise that
would result in a lower sentence than if
she were convicted on all counts, would consequences of the conviction to his
reflect a less-serious conviction on her client. He explained that she had not
criminal history, and would leave open the lived in her native Liberia since she was
possibility of avoiding deportation.3 In five years old, and that the prospect of
avoiding deportation was the motivating
force behind the structure of the plea
2
It is worth noting that Bernard agreement. In fact, because of the fear of
was ultimately sentenced to fewer than deportation, Bernard had halted her
five years. initial cooperation with police, and
therefore forfeited the possibility of a
3
During the sentencing hearing, significant downward departure for
Bernard *s attorney emphasized the providing substantial assistance to the
importance of the immigration prosecution. S.A. at 59-60.

5
F ED. R. C RIM . P. 11(c)(1)(C).4 The rule not accept the sentencing agreement, then
f u r t h e r p r o v i d e s t h a t “s u c h a under Rule 11(c)(5)(B), the defendant
recommendation or request binds the court must be allowed to withdraw her guilty
once the court accepts the plea plea.
agreement.” Id.5 If the District Court does
This Rule disposes of the case,6
requiring us to hold that a sentencing court
4
This version of Rule 11, amended has the authority to accept a plea
in 1999, was applicable at the time of agreement stipulating to a sentencing
Bernard *s plea and sentence. factor or a provision of the sentencing
guidelines that otherwise would not apply,
5
Rule 11(c)(1) contemplates three or specifying a sentence that falls outside
possible types of plea agreements, two of the applicable guidelines range. Once the
which – found in subsections (B) and (C) District Court has accepted such an
– involve an agreement with respect to agreement, it is binding.
the applicability of a particular provision
This issue does not often come up
of the sentencing guidelines. It is clear
on appellate review, apparently because
that the government and Bernard entered
the parties are unlikely to appeal the
into a Rule 11(c)(1)(C), as opposed to
consequences of a plea agreement to
Rule 11(c)(1)(B), plea agreement. Under
which they both consented, and because
Rule 11(c)(1)(B), a government attorney
the law restricts appeals from agreed-upon
may “recommend, or agree not to oppose
the defendant*s request, that a particular
sentence or sentencing range is Accordingly, we write in the context of a
appropriate or that a particular provision Rule 11(c)(1)(C) plea agreement, which,
of the Sentencing Guidelines, or policy as we have noted, is binding upon a
statement, or sentencing factor does or District Court once accepted.
does not apply.” Id. However, unlike a
6
Rule 11(c)(1)(C) agreement, a Rule Even prior to the current
11(c)(1)(B) agreement “does not bind the amendment to Rule 11, we had
court.” F ED. R. C RIM . P. 11(c)(1)(B). interpreted Rule 11 to allow plea
agreements that bargain for departures
The record makes clear that the from the sentencing guidelines. United
parties did not agree that the government States v. Gilchrist, 130 F.3d 1131, 1134
would merely recommend application of (3d Cir. 1997). In Gilchrist, we
the cross-reference provision in U.S.S.G. established that once the District Court
§ 2L2.2(c) under F ED. R. C RIM . P. accepts a plea that is conditioned upon an
11(c)(1)(B), but instead, as noted above, agreement on sentence, that plea
agreed to enter into a binding agreement agreement “binds the district court
whereby Bernard would be sentenced notwithstanding departures from the
under the cross-reference provision. applicable guidelines.” Id. at 1134.

6
sentences. See 18 U.S.C. § 3742(c). The statements that accompany the sentencing
best discussion of the issue is found in guidelines restate this rule, directing that a
United States v. Goodall, 236 F.3d 700, court may only accept a plea agreement
703-05 (D.C. Cir. 2001). We agree with mandating a particular sentence if the
the Goodall Court*s conclusion that Rule agreed sentence “is within the applicable
11 “plainly countenances agreed-upon guideline range” or it “departs from the
sentences falling outside of the otherwise applicable guideline range for justifiable
applicable Guidelines range.” Goodall, reasons.” U.S.S.G. § 6B1.2(c). Thus, there
236 F.3d at 705. In allowing the parties to is no doubt that “the Guidelines bind
agree on a specific sentence, or that judges and courts in the exercise of their
particular provisions of the guidelines do uncontested responsibility to pass sentence
or do not apply, the Rule clearly in criminal cases.” Stinson v. United
contemplates agreements on sentences that States, 508 U.S. 36, 42 (1993) (quoting
could not be reached by directly applying Mistretta v. United States, 488 U.S. 361,
the guidelines. F ED R. C RIM . P. 391 (1989)).
11(c)(1)(C). The Rule further provides
Because Rule 11 and the sentencing
that once a plea agreement with a
guidelines present such a conflict, we must
sentencing stipulation is reached between
decide which of them will prevail. See
the parties and accepted by the Court, it
Goodall, 236 F.3d at 706-08 (Randolph, J.,
must be enforced at sentencing. Id.
concurring) (providing a thorough
We also agree with the conclusion discussion of this conflict). The
of Judge Randolph, concurring in Goodall. supersession clause applicable to Rule 11
Judge Randolph noted that this portion of furnishes the answer, directing that “laws
Rule 11 seems to be in tension with in conflict with such rules shall be of no
provisions that make the sentencing further force or effect after such rules have
guidelines binding on the federal courts. taken effect.” 28 U.S.C. § 2072(b). The
See Goodall, 236 F.3d at 706 (Randolph, J. relevant portion of Rule 11(c) was added
concurring). In particular, the federal in 1999, after the last substantive change
sentencing statute provides that a to the relevant language in 18 U.S.C. §
sentencing court “shall impose a sentence 3553. As a result, we conclude, as did
of the kind, and within the range [set by Judge Randolph in Goodall, that the
the sentencing guidelines] unless the court provisions of Rule 11(c) take precedence,
finds that there exists an aggravating or and that a sentencing court may accept
mitigating circumstance of a kind, or to a plea agreements in which the parties
degree, not adequately taken into stipulate to sentences, or sentencing
c o n si d e ration b y the S enten cin g factors, that would otherwise contravene
Commission in formulating the guidelines the sentencing guidelines. Goodall, 236
that should result in a sentence different F.3d at 708 (Randolph, J., concurring).
from the one described.” 18 U.S.C. §
It is axiomatic under Rule 11 that
3553(b) (emphasis added). The policy

7
once a court accepts such an agreement, it IV.
must be en force d at sen tencing.
Finally, Bernard contends that the
Therefore, we will affirm the District
District Court violated an additional
Court*s application of the U.S.S.G. §
sentencing guidelines provision addressing
2L2.2(c) cross-reference to Bernard *s
circumstances under which a court may
sentence. Regardless of whether the cross-
utilize, pursuant to a plea agreement, a
reference would have been properly
sentencing guideline other than the one
applied in the absence of the plea
applicable to the offense of conviction.
agreement, the District Court was under an
The sentencing guidelines “describe a
obligation to apply the provision after
nine-step process by which to arrive at a
accepting the terms of Bernard *s plea. To
sentencing range.” Watterson v. United
hold otherwise would be inequitable
States, 219 F.3d 232, 235 (3d Cir. 2000).
because it would allow Bernard to get the
Under the first step of that process,
benefits of her plea bargain, while evading
according to U.S.S.G. § 1B1.1(a), the
the costs. M oreover,”[p]lea agreements
District Court “first selects the offense
are contractual and therefore are to be
guideline section applicable to the offense
analyzed under contract law standards,”
of conviction.” Watterson, 219 F.3d at
Gilchrist, 130 F.3d at 1134, and contract
235. In doing so, the guidelines instruct a
law would not support such a result.7
district court to

7
[d]etermine the offense
We note that even if we agreed
guideline section in Chapter
with Bernard *s argument, we could not
Two (Offense Conduct)
grant the relief she requests. If the
applicable to the offense of
provisions of a plea agreement are
conviction (i.e., the offense
accepted by a court, but later found to be
conduct charged in the
invalid, the proper remedy is not to
count of the indictment or
impose a sentence in violation of the plea
information of which the
agreement, but to allow the defendant to
defendant was convicted).
withdraw the guilty plea and either
negotiate a new agreement, or proceed to
trial. See United States v. Barnes, 83 sentence unilaterally in such cases, but
F.3d 934, 941 (7th Cir. 1996) (“If we rather should withdraw its acceptance of
rule that some provision of the plea the plea agreement”) (internal quotation
agreement is invalid, we must discard the marks and citation omitted); see also
entire agreement and require [the Gilchrist, 130 F.3d at 1134 (holding that
defendant] and the government to begin if a plea agreement is breached, the
their bargaining over again.”); Mukai, 26 district court may either grant specific
F.3d at 956 (“[I]f the court later finds the performance or allow the defendant to
disposition in the plea agreement withdraw the plea).
objectionable it should not reduce the

8
 However, in the case of a U.S.S.G. § 1B1.2(a).8 She then argues
plea agreement (written or
made orally on the record) 8
Bernard actually cites to U.S.S.G.
containing a stipulation that
§ 1B1.2(c), which contains language
specifically establishes a
similar to § 1B1.2(a) but applies to
more serious offense than
situations where a defendant has
the offense of conviction,
“stipulat[ed] to the commission of
determine the offense
additional offense(s).” U.S.S.G. §
guideline section in Chapter
1B1.2, app. note 3 (emphasis added). As
Two applicable to the
Application Note 3 to U.S.S.G. § 1B1.2
stipulated offense.
explains, however, U.S.S.G. § 1B1.2(c)
U.S.S.G. § 1B1.2(a). applies to situations where the defendant
has stipulated to facts that establish the
Ordinarily, under U.S.S.G. § 1B1
commission of additional offenses, and
.2(a), a defendant is to be sentenced
requires that under such circumstances
according to the guideline “applicable to
the guidelines are to be
the offense of the conviction,” id., which
applied as if the defendant
in this case would be, inter alia, U.S.S.G.
had been convicted of an
§ 2L2.2. However, “[i]n a case in which
additional count for each of
the elements of an offense more serious
the offenses stipulated. For
than the offense of conviction are
example, if the defendant is
established by a plea agreement,” U.S.S.G.
convicted of one count of
§ 1B1.2(a) provides a “limited exception”
robbery but, as part of a
to that rule, and requires that “the
plea agreement, admits to
guideline section applicable to the
having committed two
stipulated offense is to be used.” U.S.S.G.
additional robberies, the
§ 1B1.2, app. note 1.
guidelines are to be applied
While U.S.S.G. § 2L2.2 applies to as if the defendant had
Bernard because of her conviction under been convicted of three
18 U.S.C. § 1028, she argues that the counts of robbery.
cross-reference in this provision, requiring U.S. S .G. § 1B1.2, app. note 3. No
the District Court to apply, in this case, the “additional” offenses of conviction are at
drug trafficking guideline found at issue in this case (e.g., an additional
U.S.S.G. § 2D1.1, did not apply because instance of possession of a fraudulent
U.S.S.G. § 2L2.2(c)*s “passport or visa” document). Instead, Bernard *s argument
requirement was not met. Therefore, she is based upon U.S.S.G. § 1B1.2(a),
contends, the District Court could only which provides for imposition of a
have applied the drug trafficking guideline guideline other than the one applicable to
by way of the limited exception found in the offense of conviction where “the
elements of an offense [such as drug

9
that this exception would not apply to her C RIM . P. 11(c)(1)(C) agreement indicating
because she did not stipulate to any facts that a specific sentencing guideline does or
that would establish the elements of any does not apply is, once accepted, binding
offense for which the drug trafficking upon the District Court. For the same
guideline, U.S.S.G. § 2D1.1, would apply. reason, we have no occasion to address
See U.S.S.G. § 1B1.2, app. note 1 whether Bernard *s plea agreement is
(explaining that U.S.S.G. § 1B1.2(a) sufficiently specific to warrant a sentence
applies “[i]n a case in which the elements under U.S.S.G. § 1B1.2(a) based on a
of an offense more serious than the offense guideline other than the one applicable to
of conviction are established by a plea the offense of conviction. It necessarily
agreement”) (emphasis added); Braxton v. follows from our conclusion in Section III
United States, 500 U.S. 344, 349-50 that, under F ED. R. C RIM . P. 11(c)(1)(C),
(1991) (applying an earlier version of Bernard *s agreement to be sentenced under
U.S.S.G. § 1B1.2 and looking to see the cross-reference provision of U.S.S.G.
whether a defendant had stipulated to facts § 2L2.2(c) is alone sufficient to validate
that “specifically established” the elements her sentence.
of the offense the District Court sought to
V.
sentence the defendant under); see also
United States v. Nathan, 188 F.3d 190, 201 In sum and for the reasons detailed
(3d Cir. 1999) (“the text of section above, we will affirm the judgment.
1B1.2(a) . . . indicates that a statement is a
‘stipulation * only if: (i) it is part of a
defendant*s written plea agreement; (ii) it ______________
is explicitly annexed thereto; or (iii) both
the government and the defendant
explicitly agree at a factual basis hearing
that the facts being put on the record are
stipulations that might subject a defendant
to the provisions of section 1B1.2(a)”).
As indicated above, we have not
addressed the “passport or visa” argument
because of our holding that a F ED. R.

trafficking] more serious than the offense
of conviction [such as possession of a
false identification document] are
established by a plea agreement.”
U.S.S.G. § 1B1.2, app. note 1.

10