Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
12-11-2008
USA v. Leon
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-5214
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 06-5214
_______________
UNITED STATES OF AMERICA
v.
ALBERT LEON,
Appellant
_______________
On Appeal From the United States District Court
for the Middle District of Pennsylvania
(Criminal No. 05-CR-485-002)
District Judge: Honorable William W. Caldwell
Submitted Under Third Circuit LAR 34.1(a)
October 1, 2008
Before: FISHER, CHAGARES, and HARDIMAN Circuit Judges.
(Filed: December 11, 2008)
__________________
OPINION OF THE COURT
__________________
CHAGARES, Circuit Judge.
Albert Leon filed a pro se appeal from his conviction and sentence for distribution
of crack cocaine and possession of crack cocaine with intent to distribute. His counsel
has moved for permission to withdraw from representation pursuant to Anders v.
California, 386 U.S. 738 (1967). For the reasons that follow, we will deny counsel’s
Anders motion and order new counsel appointed to file a brief on Leon’s behalf.
I.
Because we write solely for the benefit of the parties, we will only briefly recite
the essential facts.
On September 11, 2006, Leon pleaded guilty, pursuant to a plea agreement, to one
count of distributing crack cocaine and possessing crack cocaine with the intent to
distribute it, all in violation of 21 U.S.C. § 841(a)(1). The agreement provided that the
Government would recommend the minimum possible period of incarceration within the
range given by the U.S. Sentencing Guidelines. The agreement further provided that if
the Government failed to make such a recommendation, Leon could withdraw his plea. It
did not bind the District Court to accept the Government’s recommendation.
At the plea colloquy, the Government represented that it believed the Guidelines
range would be 87 to 108 months. The District Judge told Leon that “it’s my
understanding that if the minimum guideline sentence of 87 months is not what the court
deems to be appropriate, then you would be permitted to withdraw your guilty plea.” The
District Judge also stated: “I indicated that if [87 months] is not the sentence, I would
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allow you to withdraw your guilty plea and go to trial.” Leon pleaded guilty, and the
District Court entered the plea.
On December 20, 2006, the District Court held a sentencing hearing. At the
hearing, the Government argued that the applicable Guidelines range was not 87 to 108
months but 100 to 125 months. This new calculation was based upon a prior conviction
for domestic assault that the U.S. Probation Office discovered after the date of the plea
hearing. Leon argued that the newly-discovered conviction was not a “conviction” at all
for Guidelines purposes but rather detention pending extradition with regard to another
matter. Excluding this conviction from the Guidelines calculation would have brought
the advisory range back down to the Government’s earlier estimate of 87 to 108 months.
The Government stated that it would not oppose the District Court’s sentencing
using the 100-to-125-months range, but it suggested allowing Leon to come back at a
later date with evidence demonstrating that the domestic-abuse conviction should not be
considered and therefore that the 87-to-108-months range was appropriate. The District
Court indicated that it agreed to this procedure. The District Court then imposed a
sentence including a prison term of 100 months. Leon made no subsequent attempts to
demonstrate that the domestic-assault conviction should have been excluded from the
Guidelines calculation.
Leon then filed a pro se appeal. His counsel has petitioned to withdraw and filed a
supporting Anders brief.
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II.
The District Court had jurisdiction pursuant to 28 U.S.C. § 3231, and we have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Defense counsel has filed an Anders brief asserting that no arguably meritorious
legal issues exist and that we should allow her to withdraw from the case. Leon received
a copy of the Anders brief and filed a pro se brief identifying issues he believes have
merit. The Supreme Court instructed in Anders that “if [this Court] finds any of the legal
points arguable on their merits (and therefore not frivolous) it must, prior to decision,
afford the indigent the assistance of counsel to argue the appeal.” 386 U.S. at 744.
Because we find an arguably meritorious legal issue, we will reject counsel’s Anders
brief, grant her request to withdraw from the case, and order new counsel appointed to
file a brief in support of Leon’s appeal. United States v. Youla, 241 F.3d 296, 302 (3d
Cir. 2001) (describing appropriate procedure when Court finds issue of arguable legal
merit).
Leon argues that his conviction and sentence should be vacated because the plea
agreement was breached. Without deciding the issue, we hold that it arguably has merit
and observe that defense counsel did not address it in her Anders brief.
Analyzing this issue requires, at the threshold, determining exactly what promises
the plea agreement contains. The parties executed a written agreement in advance of the
plea colloquy. The law is clear, however, that a plea agreement encompasses whatever
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was “reasonably understood by [the defendant] when he entered his plea of guilty.”
United States v. Crusco, 536 F.2d 21, 27 (3d Cir. 1976). That is, the agreement may
include obligations not enumerated within the four corners of the written document. This
is especially true, we have explained, when such obligations stem from a reasonable
understanding of comments made by a district judge during a plea colloquy. Id. at 24.
Here, it seems arguable that Leon understood the plea agreement to require the
District Court to impose an 87-month prison term notwithstanding the Guidelines.
Although the written agreement does recite that it does not bind the District Court, it also
provides that it may be modified “on the record in court.” App. 40a (Plea Agreement ¶
24), 50a (Plea Agreement ¶ 38). The District Judge, speaking on the record in court
during the plea hearing, stated: “[I]t’s my understanding that if the minimum Guideline
sentence of 87 months is not what the Court deems to be appropriate, then you would be
permitted to withdraw your guilty plea.” Supp. App 6. The Government did not object.
See generally Gov’t’s Br. at 19 (noting the Government “acknowledges that at the time of
the guilty plea proceeding, the written plea agreement was orally amended. . . .”). Later
in the plea hearing, when Leon said he “was told that I was going to get 87 months, no
more than 87 months,” the District Judge stated: “Well, I said, I indicated that if that is
not the sentence, I would allow you to withdraw your guilty plea and go to trial.” Supp.
App. 9. Again, the Government did not object. Arguably, these statements (combined
with the Government’s acquiescence) may be reasonably understood to provide that Leon
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could withdraw his plea if the District Court ultimately imposed a prison term greater
than 87 months.
The District Court’s imposition of a 100-month prison term, then, would constitute
a breach of the agreement. However, it is possible that Leon ratified a modification to the
agreement when he agreed to the use of the 100-to-125-months range pending discovery
of any documentation tending to demonstrate that the domestic-assault matter did not
result in a “conviction” for Guidelines calculation purposes. See, e.g., United States v.
Gilchrist, 130 F.3d 1131, 1134 (3d Cir. 1997) (analyzing plea agreement using contract-
law principles).
In any event, if we determined that the agreement was breached (and not
subsequently ratified), we might vacate the sentence and remand to the District Court
either to allow the defendant to withdraw his guilty plea or to impose an 87-month prison
term. See id. at 1136 (holding that plea agreement providing for stipulated sentence was
breached, vacating conviction and sentence, and remanding to district court to allow
withdrawal or to impose stipulated sentence).
It is clear that the four-page “Argument” section of the Anders brief does not even
raise (much less discuss and explain the frivolousness of) the issue of whether the plea
agreement was modified or breached. Anders Br. at 15-18. Indeed, as the Government
points out, defense counsel did not even obtain a transcript of the guilty-plea hearing
before filing the Anders brief. Gov’t’s Br. at 10 n.2, 19 n.3.
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III.
Without ruling on the breach issue, we hold that it arguably has merit. Therefore,
in accordance with Local Appellate Rule 109.2(a), we will grant current counsel’s motion
for leave to withdraw, and direct the Clerk to appoint substitute counsel, restore this case
to the calendar, and fix a subsequent briefing schedule.
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