United States v. Rivera

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

2-9-2004

USA v. Rivera
Precedential or Non-Precedential: Precedential

Docket No. 02-3067

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 PRECEDENTIAL Counsel for Appellant
UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT Clayton A. Sweeney, Jr. (Argued)
P.O. Box 55441
No. 02-3067 Philadelphia, PA 19127-5441

Counsel for Appellee
UNITED STATES OF AMERICA
Christopher J. Christie
v. United States Attorney
George S. Leone
ISAAC RIVERA, Chief, Appeals Division
Appellant 970 Broad Street, Room 700
Newark, N.J. 07102-2535

ON APPEAL FROM THE UNITED Norman Gross (Argued)
STATES DISTRICT COURT Assistant United States
FOR THE DISTRICT OF Attorney
NEW JERSEY United States Courthouse
401 Market Street, Fourth Floor
District Court Judge: Camden, N.J. 08101-2098
Honorable Jerome B. Simandle

(D.C. No. Cr. 01-373-05)
OPINION OF THE COURT

Argued: December 4, 2003

Before: SLOVITER and ALITO, Circuit OBERDORFER, Senior District Judge:
Judges, and OBERDORFER,* District
Judge. Isaac Rivera appeals from his
sentence after he pled guilty pursuant to
(Opinion Filed: February 9, 2004) a plea agreement with the United States.
For the reasons stated below, we hold
that the government breached that
agreement and vacate the sentence. We
* then follow the well-established
The Honorable Louis F.
procedure of remanding to the district
Oberdorfer, Senior District Judge for the
court for resentencing.
District of Columbia, sitting by
designation.

1
 I. The dispute on appeal focuses on
the provisions of the plea agreement
From approximately June 2000 addressing sentencing, in particular a
until on or about June 5, 2001, Rivera 1 section titled “Stipulations.” App. at
led a drug trafficking conspiracy that 60(a). That section stated that the United
imported kilogram-quantities of cocaine States and Rivera “agree to stipulate at
powder from his suppliers in Puerto sentencing to the statements set forth in
Rico, converted some of that powder into attached Schedule A.” Id. Schedule A,
cocaine base, and distributed the cocaine in turn, provided in its first sentence that
and cocaine base in Camden, New the United States and Rivera “agree to
Jersey. On October 9, 2001, a federal stipulate at sentencing to the statements
grand jury returned a two-count set forth below, subject to the conditions
indictment against Rivera. Count One in the attached plea agreement.” Id. at
charged him with conspiracy to distribute 64(a). Schedule A also stated that the
and to possess with intent to distribute base Offense Level was 38. By way of
more than 50 grams of cocaine base and adjustment, however, Rivera would
more than five kilograms of cocaine receive a two-level Offense Level
powder in violation of 21 U.S.C. § 846. reduction if his “acceptance of
Count Two charged possession with responsibility continue[d] through
intent to distribute more than 500 grams sentencing.” Id. He was to receive an
of cocaine in violation of 21 U.S.C. § additional one-level decrease if the
841(a)(1). On November 7, 2001, Rivera Offense Level set by the district court
and the United States entered into an was 16 or greater. Id. Section 5, the
agreement which provided, among other provision focused on by the parties on
things, that Rivera would plead guilty to appeal, stated, “In accordance with the
Count One of the indictment and the above, the applicable guidelines total
United States would dismiss Count Two. offense level is 35.” Id. (emphasis
supplied).

The plea agreement also stated
1 some conditions: that the “sentence to be
The underlying criminal
imposed upon Isaac [Rivera] is within
indictment named Rivera as Isaac Burgos
the sole discretion of the sentencing
a/k/a Isaac Bonilla a/k/a Isaac Rivera. At
judge” and that the government “cannot
the change of plea hearing, by the
and does not make any representation or
consent of both parties, the district court
promise as to what guideline will be
granted a motion to deem changed all
found applicable . . . or what sentence
pleadings and documents to reflect that
Isaac [Rivera] will ultimately receive.”
the defendant (now appellant)’s true
App. at 59(a). The plea agreement
name is Isaac Rivera, with Burgos and
further stated that “[e]xcept as otherwise
Bonilla listed as aliases.

2
provided in this agreement, [the United The court asked: “Does the government
States] reserves its right to take any take any position with regard to role in
position with respect to the appropriate the offense?” App. at 29(a). By way of
sentence to be imposed on [Rivera] by allocution, the prosecutor responded, “we
the sentencing judge.” Id. at 59(a)-60(a). stand by the probation officer’s
conclusions. . . . The notion that
On February 10, 2002, the United because Schedule A refers to a specific
States Probation Office advised the offense level . . . perhaps it’s a little bit
prosecution, Rivera, and the court that of poor draftsmanship. . . . Schedule A
Rivera’s leadership “role in the is . . . silent [] as . . . to any other upward
conspiracy warrants a four level increase, or downward adjustments.” Id. at 29(a)-
pursuant to [USSG] § 3B1.1(a).” 30(a).
Presentence Report at 10. Accordingly,
the report called for an Offense Level of Ruling orally from the bench at
39, while recognizing that “a 4+ the sentencing hearing, the district court
adjustment [] is contrary to the plea stated:
agreement, in that the plea agreement
specifies a total offense level of 35.” Id. the parties recognized at
at 19. On April 18, 2002, Rivera filed the time of their stipulation
objections in which he stated regarding that there may be other
the recommendation that the Offense Guidelines that have a
Level be set at 39: “such an application is bearing upon what the
repugnant to the defendant’s plea appropriate sentence
agreement.” App. at 132(a). should be, and that they
had not reached agreement
The United States’ attorney as to any other Guidelines,
replied to Rivera’s objections by filing a and . . . The parties do
letter brief with the district court. The reserve their rights to argue
letter argued that Rivera’s assertion mitigating or aggravating
“constitutes a clear misapplication of the circumstances that are not
Plea Agreement,” and that, regarding the covered by their
defendant’s role within the conspiracy, stipulations. . . . The
“the United States is not precluded from probation department has
arguing that the defendant is deserving of proposed that there be a
a role enhancement.” Id. at 143(a). four point enhancement for
Rivera did not file a response to the the defendant’s leadership
government’s letter. role in the conspiracy. The
parties’ stipulation is silent
On July 19, 2002, the district as to any adjustment for
court conducted the sentencing hearing. role. The parties’

3
 stipulation does not applicable offense level.2 Our analysis of
constitute an agreement that argument proceeds in three parts.
that there shall be no role We first discuss the standard of review,
adjustment. then the merits of Rivera’s claim that the
United States breached the plea
But even if it is interpreted agreement, then the issue of remedy.
as at least a silent
agreement that the proper A. Standard of Review
Total Offense Level is 35
as Paragraph 5 of the The threshold question is the
stipulations recites, the applicable standard of review. We
Court nonetheless has to conclude that our review is de novo. The
look at the facts of the case
and to determine whether
the Sentencing Guidelines 2
Rivera raises five
indicate that any role
additional arguments: that (1) the district
adjustment, either upward
court erred in failing to hold that the
or downward, is
government breached its duty to consider
appropriate in this case.
all of Rivera’s cooperation under USSG
§ 5K1.1; (2) 21 U.S.C. §§ 841(B)(1)(A)-
Id. at 27(a)-28(a) (emphasis supplied).
(B) are facially unconstitutional with
respect to cocaine and cocaine base; (3)
The district court ultimately
USSG § 3B1.1(a) is unconstitutional
adopted the factual findings and
under Apprendi v. New Jersey, 530 U.S.
recommendations of the Presentence
466 (2000), because it increases a
Report and, accordingly, set the
mandatory minimum sentence upon
applicable Offense Level to 39 and
judicial fact-finding under a
sentenced Rivera to a 324 months term
preponderance of the evidence standard
of imprisonment and supervised release
of proof; (4) USSG § 3B1.1 is
of five years. This appeal followed.
unconstitutional under Apprendi and
Ring v. Arizona, 536 U.S. 584 (2002),
II.
because it authorizes punishment beyond
the facts established by the offense of
Rivera’s principal argument is that
conviction or stipulations; and (5) that
the United States’ allocution breached
applying 18 U.S.C. § 3742 (g)(2) on
the plea agreement by advocating to the
remand would violate the constitutional
sentencing judge that the four-level
separation of powers doctrine. We
enhancement recommended by the
resolve the appeal on the issue of breach
Presentence Report be added to the
of plea agreement and do not reach these
additional arguments.

4
United States argues that Rivera failed to The government argues that our
raise the issue below. It cites United statement in Queensborough is not
States v. Thornton, 306 F.3d 135, 137 controlling because we ultimately held
(3d Cir. 2002), for the proposition that that there was no error and because it is
Rivera’s claim for breach of plea not made clear in that decision whether
agreement by the United States is the defendant made any argument that
therefore subject to the “plain error the plain error standard of review should
standard of review on appeal.” Aple’s apply. This reading of Queensborough is
Br. at 19. However, Thornton involved a too narrow: in adopting a “plenary”
defendant’s claim that a district court framework of review, rather than the
violated the plea agreement by discretionary four-plus step plain error
considering evidence that the plea review of United States v. Olano, 507
agreement had stipulated would be U.S. 725 (1993), and its progeny, we did
excluded for the purposes of sentencing. not reserve the question of what standard
See 306 F.3d at 1357. In contrast, in a of review controlled. Nor did we qualify
case where the defendant, like Rivera, our statement that the applicable review
claimed breach of the plea agreement by was “plenary” in any way. Our law
the prosecution, and the defendant defines “plenary” as de novo. See Dixon
“concede[d] that he did not raise this Ticonderoga Co. v. Estate of O’Connor,
objection in the district court,” this court 248 F.3d 151, 161 (3d Cir. 2001).
has stated, without qualification, that Accordingly, even if Rivera’s objection
“whether the government violated the to the Presentence Report did not
terms of a plea agreement is a question of effectively raise the issue before the
law subject to plenary review.” United district court, 4 our review must be de
States v. Queensborough, 227 F.3d 149,
156 (3d Cir. 2000) (emphasis supplied)
(citing United States v. Moschahlaidis, See 227 F.3d at 156; see also United
868 F.2d 1357, 1360 (3d Cir. 1989)). States v. Peterson, 225 F.3d 1167, 1170
Accord, e.g., United States v. Lawlor, n.2 (10th Cir. 2000) (collecting cases on
168 F.3d 633, 636 (2d Cir. 1999); United either side of the circuit split).
States v. Courtois, 131 F.3d 937, 938 & 4
We note, parenthetically,
n.2 (10th Cir. 1997). 3
that the United States and the sentencing
judge were on notice from Rivera’s
objections, filed before the sentencing
3
As we observed in hearing, that Rivera viewed the adoption
Queensborough, a number of other courts of the probation officer’s recommended
of appeals have reviewed claims that the departure from the plea agreement’s
government breached a plea bargain not stipulated 35 Offense Level (or an
raised before the district court under a allocution or sentence adopting that
clearly erroneous or plain error standard. recommendation) as “repugnant to [the]

5
novo.5 Nolan-Cooper, 155 F.3d 221, 236 (3d
Cir. 1998). Third, the United States has
Well-established, additional an obligation to “‘adhere strictly to the
principles confirm the propriety of de terms of the bargain it strikes with
novo review of Rivera’s claim. First, defendants.’” Queensborough, 227 F.3d
“[b]reach of a plea agreement by a at 156 (quoting Moschahlaidis, 868 F.2d
prosecutor [] strikes at public confidence at 1361). “Because the defendant, by
in the fair administration of justice and, entering into the plea, surrenders a
in turn, the integrity of our criminal number of h[is] constitutional rights,
justice system in which a vast number of ‘courts are compelled to scrutinize
cases are resolved by plea agreement.” closely the promise made by the
Dunn, 247 F.3d at 463. Second, because government in order to determine
they relieve the government of the need whether it has been performed.’”
to prepare and conduct a trial, “[p]lea Nolan-Cooper, 155 F.3d at 236 (quoting
agreements, though arising in a criminal United States v. Hayes, 946 F.2d 230,
context, are analyzed under contract law 233 (3d Cir. 1991)). Fourth, in
standards.” United States v. determining whether the plea agreement
has been breached, we must determine
“whether the government’s conduct is
plea agreement.” Thus the judge must inconsistent with what was reasonably
have known, or is chargeable with understood by the defendant when
knowledge, that Rivera thought that a 39 entering the plea of guilty.” United
Offense Level was contrary to the plea States v. Badaracco, 954 F.2d 928, 939
agreement. The availability of de novo (3d Cir. 1992) (internal quotation marks
review on appeal regardless of whether omitted). Finally, “[i]n view of the
Rivera formally objected to the government’s tremendous bargaining
government’s advocacy makes it power, we will strictly construe the text
unnecessary for us to pursue the question against it” as the drafter of plea
of whether this indirect notice entitles agreements to the extent the agreement
Rivera to de novo review on independent is ambiguous. United States v. Baird,
grounds. 218 F.3d 221, 229 (3d Cir. 2000).
5 Accordingly, the United States may not
According to the
rely upon a ‘rigidly literal’ approach to
government, extending de novo review
the construction of the terms of the plea
“to areas outside the breach context
agreement.” Nolan-Cooper, 155 F.3d at
would eviscerate the contemporaneous
236 (citing Moschahlaidis, 868 F.2d at
objection requirement.” Aple’s Br. at 36.
1361).
However, our statement of the applicable
standard of review in Queensborough
was limited to the plea bargain context
and the important concerns it implicates.

6
B. Merits of Rivera’s Claim for The government advances five
Breach of Plea Bargain (closely related) arguments in favor of
the district court’s interpretation of the
Rivera’s argument that the plea agreement, none of which we find
government breached the plea agreement persuasive. The government’s most
is straightforward and persuasive. The forceful argument is that the provision in
plea agreement stated: “In accordance the plea agreement – that “except as
with the above, the applicable guidelines otherwise provided in this agreement,
total offense level is 35.” 6 The statement [the United States] reserves its right to
by the United States’ attorney that “we take any position with respect to the
stand by the probation officer’s appropriate sentence to be imposed on
conclusions,” App. at 29(a) – which Isaac [Rivera] by the sentencing judge” –
included the recommendation that the permitted the government to advocate a
Offense Level should be 39 – was role enhancement. However, this
inconsistent with the stipulation entered argument, based on the broadly worded
into by the United States that the exception, runs counter to, and is
applicable Offense Level would be 35. therefore trumped by, the specific
By, in effect, endorsing the Probation stipulation in the agreement. See Corbin
Office’s recommendation of an Offense on Contracts § 24.23 (revised ed. 1998)
Level of 39, the government breached its (“If the apparent consistency is between
agreement that the stipulated applicable a clause that is general and broadly
Offense Level would be 35.7 inclusive in nature and one that is more
limited and specific in its coverage, the
6
more specific should . . . be held to
Given this language, it is prevail over the more general term”); see
difficult to understand how the district also Restatement (Second) of Contracts §
court arrived at the conclusion that there 203. Because the Offense Level was
may have been a “silent agreement that specifically stipulated to, whereas the
the proper Total Offense level is 35.” government’s right to advocate a role
App. at 25(a) (emphasis supplied).
7
The possibility that the
district court might have adopted the doctrine that the government must adhere
probation officer’s findings and to its bargain in the plea agreement is so
recommendations even had the fundamental that even though the
government not urged their adoption is government’s breach is inadvertent and
not relevant to the question of breach. the breach probably did not influence the
To be entitled to remand, Rivera need judge in the sentence imposed, due
only show that the United States process and equity require that the
breached its agreement. See sentence be vacated.”) (internal
Nolan-Cooper, 155 F.3d at 236 (“the quotations omitted).

7
enhancement was not, the government’s Level at 16 or higher).
endorsement of an enhancement that
would raise the Offense Level above the Third, and relatedly, the
stipulated level contravened the plea government asserts that the position of
agreement. Moreover, to the extent there paragraph 5 in Schedule A, coming
is ambiguity caused by the “little bit of immediately after the paragraphs which
poor draftsmanship” conceded by the established the components of the
prosecutor, we must construe the calculation set forth in that paragraph,
agreement against the government as “suggests that ¶ 5 was intended to
drafter. See Baird, 218 F.3d at 229.8 explain and justify those . . . provisions,
rather than to bind a Total Offense Level
Second, the government argues [of] 35 for all purposes.” Aple’s Br. at
that an interpretation that binds it to the 40 (emphasis supplied). We agree, as
stipulation in Paragraph 5 renders mentioned, that the “Stipulations”
“superfluous” the language in Paragraph section’s function was, in part, to explain
5 that the stipulation to the Offense Level the calculation of the applicable Offense
being 35 was “in accordance with the Level. However, this does not make the
above.” Aple’s Br. at 40. Nor is this stipulation non-binding. To the extent
argument persuasive. The foregoing the United States, as the drafting party,
language may be fairly construed as desired to qualify the stipulation, it could
having independent, non-“superfluous” have included such language. But it did
meaning: it explains the steps by which not. And, again, to the extent that this
the stipulation reduced the Offense Level provision is ambiguous – and it is at least
from 38 to 35 (two-level reduction for ambiguous – we construe the provision
acceptance of responsibility; one level as effecting a binding obligation on the
reduction if the court set the Offense government. Cf. Baird, 218 F.3d at 229.

Next, argues the government, the
8 district court’s construction of the plea
Perhaps recognizing that
agreement should be upheld because
the provision at issue here created at least
“there is no controlling judicial authority
ambiguity on the question of the
. . . which has held, even at this time, that
government’s ability to, consistent with
language similar to that in this plea
the plea agreement, advocate for
agreement forbade the government from
enhancements not specified in the
advocating [] a role enhancement.”
agreement, the government concedes that
Aple’s Br. at 39. We reject this
“[t]he United States Attorney’s Office
argument. That the construction of this
has subsequently re-drafted its form
plea agreement’s stipulation language, or
cooperating plea agreement to omit any
language similar to it, has not apparently
stipulation regarding the Total Offense
been analyzed in a published opinion is
Level.” Aple’s Br. at 26 n.8.

8
no bar to our analysis of the agreement. enhancement. See App. at 131(a).
Significantly, the government identifies
no authority, controlling or otherwise, C. Remedy
that has sanctioned role advocacy where
the plea agreement was silent regarding The final issue concerns what
role enhancement and affirmatively remedy is appropriate. “When the
stipulated a particular Offense Level. government breaches a plea agreement,
the general rule is to remand the case to
Finally, the government urges us the district court for a determination
to draw an inference adverse to Rivera whether to grant specific performance or
from his failure to object before the to allow withdrawal of the plea.”
district court to the statement in the Nolan-Cooper, 155 F.3d at 241. “It is
government’s letter brief concerning an also the rule in this circuit that if specific
enhancement for role. The government performance is the applicable remedy,
cites language from a recent opinion by the defendant must be re-sentenced by a
a sister circuit court that the appellant’s different district judge than the one who
“failure to object at sentencing [that the presided over the now-vacated original
government breached the plea sentence.” Id.9 Consistent with this
agreement] is but further evidence that Circuit’s practice, the parties agree that if
his expectations of the government were we find, as we have, a breach of the plea
satisfied.” United States v. Werner, 317 agreement, the case should be remanded
F.3d 1168, 1170 (10th Cir. 2003). for resentencing before a different judge.
However, we are reluctant to draw any See Aplt’s Br. at 48; Aple’s Br. at 50
such inference from silence without n.20; Nolan-Cooper, 155 F.3d at 241 (in
more. Further, the government’s remanding for reassignment and
argument is not supported by the record. resentencing, explaining that “‘[s]pecific
Far from being satisfied, Rivera firmly performance is feasible and is a lesser
objected to the probation officer’s burden on the government and
recommendation of an Offense Level of defendant’”) (quoting United States v.
39 as being “repugnant to the Kurkuler, 918 F.2d 295, 302 (1st Cir.
defendant’s plea agreement.” Although 1990)). Accordingly, we will vacate the
not a challenge to the government’s sentence imposed and remand the case to
advocacy of a role enhancement, this the district court for resentencing before
objection, filed in the district court
subsequent to the execution of the plea
agreement, but over three months before 9
By directing resentencing
sentencing, suggests quite clearly that
by a different District Judge, we do not
Rivera did not accept the theory that the
suggest that the original District Judge
plea agreement authorized the
could not resentence appropriately. We
government to advocate for a role
are merely following our prior opinions.

9
a different judge.

III.

“It is very well to say that those
who deal with the Government should
turn square corners. But there is no
reason why the square corners should
constitute a one-way street.” Federal
Crop Ins. Corp. v. Merrill, 332 U.S. 380,
387-88 (1947) (Jackson, J., dissenting).
For the reasons set forth above, we hold
that the United States breached the plea
agreement, VACATE the sentence, and
REMAND to the district court for
reassignment to a different judge and
resentencing.

10