FILED
United States Court of
UNITED STATES COURT OF APPEALS Appeals
Tenth Circuit
FOR THE TENTH CIRCUIT
_________________________________
December 16, 2015
Elisabeth A. Shumaker
UNITED STATES OF AMERICA, Clerk of Court
Plaintiff–Appellee,
v. No. 14–2194
(D.C. No. 1:10-CR-02734-JCH-3)
CASSLYN MAE WELCH, (D. New Mexico)
Defendant–Appellant.
_________________________________
ORDER AND JUDGMENT *
_________________________________
Before BRISCOE, EBEL, and BACHARACH, Circuit Judges.
_________________________________
Ms. Casslyn Mae Welch was indicted on eleven counts based on her
involvement in a carjacking and conspiracy that led to the killing of two
individuals. Facing a possible death sentence, Ms. Welch signed a plea
agreement, promising to cooperate with the government’s investigation and
prosecution of another suspect. Ms. Welch performed her obligations under
the plea agreement by September 2013.
*
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value under
Fed. R. App. P. 32.1(a) and 10th Cir. R. 32.1(A).
Ms. Welch alleges that roughly two weeks before her sentencing
hearing, the prosecutor orally promised to do three things:
1. move for a downward departure based on Ms. Welch’s
substantial assistance,
2. “not [to] oppose” Ms. Welch’s request for a 20-year
sentence, and
3. defer to the district court on any sentencing decisions.
The parties do not dispute that the government moved for a downward
departure. But according to Ms. Welch, the prosecutor breached the plea
agreement and the implied covenant of good faith and fair dealing by
1. agreeing to not oppose a 20-year sentence, but saying at
the sentencing hearing that the government did “not
concur” with Ms. Welch’s request for a 20-year sentence
and
2. agreeing to defer any sentencing decisions to the district
court, but saying at the sentencing hearing that a 40-year
sentence was “sufficient but not greater than necessary”
and that Ms. Welch had made a “decision . . . to kill” and
lacked a “moral compass.”
The district court rejected both claims, holding that the government had
not breached the plea agreement or an alleged covenant of good faith and
fair dealing. We agree.
I. The government did not breach any express promises in the plea
agreement.
We conclude that the government did not breach any express
promises in the plea agreement. In our view, the government complied with
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all of its written promises, and the alleged oral promises were
unenforceable.
A. We apply principles of contract law.
We engage in de novo review of claims that the government breached
a plea agreement. See United States v. Burke, 633 F.3d 984, 994 (10th Cir.
2011). In applying this standard, we consider whether Ms. Welch proved a
breach through a preponderance of the evidence. Sternberg v. Sec’y, Dep’t
of Health & Human Servs., 299 F.3d 1201, 1206 (10th Cir. 2002).
To determine whether Ms. Welch satisfied her burden, we conduct a
two-part inquiry, examining
1. the nature of the government’s promise and
2. Ms. Welch’s reasonable understanding of the promise at the
time of her guilty plea.
Burke, 633 F.3d at 994. We interpret the plea agreement based on
principles of contract law, looking to “the express language in the
agreement.” United States v. Cudjoe, 534 F.3d 1349, 1353 (10th Cir. 2008)
(quoting United States v. Rodriguez-Rivera, 518 F.3d 1208, 1212-13 (10th
Cir. 2008)). But any ambiguities are interpreted against the government as
the drafter of the agreement. See United States v. VanDam, 493 F.3d 1194,
1199 (10th Cir. 2007).
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B. The government complied with its written promises.
In the written plea agreement and addendum, the government
promised to
1. move to reduce Ms. Welch’s base-offense level by three
levels under § 3E1.1 of the sentencing guidelines,
2. move to dismiss two specified counts against Ms. Welch
if she continued to accept responsibility for her conduct,
3. refrain from further charges against Ms. Welch for
conduct underlying the indictment, and
4. consider moving for a downward departure under § 5K1.1
of the sentencing guidelines.
R. vol. I, at 111-12, 115; R. vol. II, at 2-3.
The parties do not dispute that the government
1. moved for a three-level reduction in Ms. Welch’s offense
level,
2. moved to dismiss the specified charges against Ms.
Welch,
3. did not bring further charges against Ms. Welch, and
4. moved for a downward departure.
See R. vol. I, at 121-22; R. vol. II, at 63-72; Oral Arg. at 11:15-12:00. The
government’s motion for a downward departure proved successful: the
district court sentenced Ms. Welch far below the floor of the guideline
range. See R. vol. I, at 209 (reducing Ms. Welch’s sentence from 1,490
months to 480 months). Thus, the government did everything that it had
expressly promised in the written plea agreement and addendum.
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C. The alleged oral promises are unenforceable and did
not relinquish the government’s discretion.
Ms. Welch contends that the prosecutor failed to carry out
subsequent oral promises. We reject this contention. The alleged oral
promises are unenforceable because they (1) did not appear in the written
plea agreement or addendum and (2) lacked consideration from Ms. Welch.
1. The plea agreement foreclosed oral modification.
We consider a plea agreement “completely integrated” if it contains a
“complete and exclusive statement of the terms of the agreement.” United
States v. Rockwell Int’l Corp., 124 F.3d 1194, 1199 (10th Cir. 1997)
(quoting Restatement (Second) of Contracts § 210(1) (1981)). The written
plea agreement and addendum contained both a complete expression of the
terms and express integration clauses. As a result, the plea agreement was
completely integrated, precluding any modification unless it was in writing
and signed by all parties. R. vol. I, at 116; R. vol. II, at 3. The integration
clauses could be avoided only through proof of “fraud, mistake, duress,” or
another ground sufficient for setting aside a contract. Blackledge v.
Allison, 431 U.S. 63, 75 n.6 (1977).
Rather than invoke these grounds, Ms. Welch argues that the
government breached its alleged oral promises. But these promises were
never put in writing or signed by the parties. In the absence of a signed
writing, the alleged oral promises are unenforceable under the plea
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agreement because enforcement would create a conflict with the integration
clauses. See United States v. Cudjoe, 534 F.3d 1349, 1353 (10th Cir. 2008)
(explaining that we look to the “express language in the [plea]
agreement”).
2. The alleged oral promises are not enforceable as a new
agreement.
The alleged oral promises are also unenforceable as a new agreement.
If viewed as a new agreement, the alleged oral promises would have been
enforceable only if Ms. Welch had provided new consideration. See United
States v. Leach, 562 F.3d 930, 936-37 (8th Cir. 2009) (explaining that the
government’s alleged oral promises, which were made after the defendant
had pleaded guilty, could not serve as “part of the [defendant’s]
inducement or consideration underlying the guilty plea”); In re Sealed
Case, 686 F.3d 799, 802-03 (D.C. Cir. 2012) (noting that the government is
not bound by a promise when it “obtained nothing from [a] promise to
which it was not already entitled”). But Ms. Welch did not provide any
new consideration for the alleged oral promises.
After the parties signed the written plea agreement, Ms. Welch did
not promise to do anything that she was not already obligated to do. In
fact, when the government allegedly made the oral promises, Ms. Welch
had completed her performance under the written plea agreement more than
seven months earlier. Thus, the prosecutor’s alleged oral promises lacked
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consideration from Ms. Welch. Without consideration from Ms. Welch, the
alleged oral promises would be unenforceable as a new agreement.
The result might be different if the government had induced Ms.
Welch with the promise of a 20-year sentence and Ms. Welch reciprocated
by supplying the government with additional help. For example, if the
government had orally promised to support Ms. Welch’s request for a 20-
year sentence and that promise led Ms. Welch to cooperate with another
investigation, the oral promise might have been enforceable. See, e.g.,
Gibson v. Arnold, 288 F.3d 1242, 1245 (10th Cir. 2002) (explaining that a
promisee’s “detrimental reliance” on an oral promise may estop the
promisor from claiming the oral promise was not enforceable).
But that was not the case here. The government allegedly promised
not to oppose a 20-year sentence after Ms. Welch had completed her
performance. Thus, the government’s alleged oral promises could not have
induced Ms. Welch’s performance. In these circumstances, the alleged oral
promises could not be enforced as a separate agreement.
3. The alleged oral statements did not relinquish the
government’s discretion.
Ms. Welch contends that the written agreement “left open” the
government’s eventual position on sentencing. Based on this open term in
the written agreement, she argues, the government initially retained
discretion on what to say at the sentencing hearing. But Ms. Welch argues
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that the prosecutor then relinquished that discretion by orally agreeing (1)
not to oppose a 20-year sentence and (2) to defer sentencing decisions to
the district court.
We disagree. About two weeks before the sentencing hearing, defense
counsel asked the prosecutors what position the government intended to
take at the sentencing hearing. The prosecutors allegedly promised to not
oppose a 20-year sentence and to defer to the district court’s sentencing
decisions. But these alleged promises would not have abrogated the
government’s discretion or “filled in” any open terms. The government
always retained its discretion, memorialized in the written agreement, on
what to say at the sentencing hearing. R. vol. I, at 112.
Ms. Welch suggests that the prosecutors effectively relinquished that
discretion. This suggestion is invalid: relinquishment of discretion would
have constituted a modification of the written plea agreement, which would
have required a new, signed writing or a separate agreement with new
consideration from Ms. Welch. As discussed above, Ms. Welch did not
obtain a signed writing or provide new consideration for a new promise. As
a result, the alleged oral statements did not create an enforceable
obligation by “filling in” an open term.
4. Our precedents on plea agreements are distinguishable.
Ms. Welch mistakenly relies on our decisions in United States v.
Brye, United States v. Hawley, and United States v. Mata-Vasquez. In Brye
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and Hawley, the government promised in a written plea agreement to not
oppose a defendant’s requested sentencing term. United States v. Brye, 146
F.3d 1207, 1212 (10th Cir. 1998); United States v. Hawley, 93 F.3d 682,
691 (10th Cir. 1996). The plea agreement in Brye also included the
government’s written promise to stipulate to a specified sentence. See
Brye, 146 F.3d at 1210 (promising to stipulate to a sentence of “no more
than [60] months”). In Mata-Vasquez, the parties agreed that an oral
agreement was equivalent to a written plea agreement; but there, the
parties had not signed a written agreement. United States v. Mata-Vasquez,
111 F. App’x 986, 990 (10th Cir. 2004).
These decisions do not apply here because Ms. Welch’s written plea
agreement
did not limit the government’s discretion to take certain
positions at sentencing and
specifically provided that additional terms were unenforceable
unless made in writing and signed by all parties.
* * * *
In these circumstances, we decline to enforce the government’s
alleged oral promises. They are unenforceable under the written plea
agreement, lacked new consideration to constitute a new agreement, and
did not relinquish the government’s discretion.
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II. Even if an implied covenant of good faith and fair dealing existed,
it was not violated.
Ms. Welch also claims that the government breached the implied
covenant of good faith and fair dealing. For the sake of argument, we can
assume without deciding that this covenant exists in plea agreements. But
even with this assumption, Ms. Welch’s claim would fail: the district court
found that there was not “any evidence of bad faith” (R. vol. II, at 82), and
we uphold that finding.
Our review is limited, for we must decide only whether the district
court’s factual finding entailed clear error. United States v. Williams, 292
F.3d 681, 685 (10th Cir. 2002). To decide whether the district court
committed clear error, we consider whether the court’s finding lacks record
support or leaves us with a “definite and firm conviction” that the finding
was incorrect. Id.
We apply this standard to the district court’s finding that “confusion
between the parties resulted from the semantics used by each side,” not bad
faith. R. vol. II, at 82. In making this finding, the district court
characterized the government’s statements at the sentencing hearing as “so
vague and lacking in substance that it carried no weight in the Court’s
decision.” Id. at 82 n.1. 1
1
Ms. Welch argues that it does not matter whether the breach was
intentional or affected the sentence. We decline to address these arguments
because they do not affect our inquiry under the clear-error standard.
10
Ms. Welch disagrees, claiming that the prosecutor urged the district
court to apply a 40-year sentence by stating that a 40-year sentence was
“sufficient but not greater than necessary.” Appellant’s Opening Br. at 14,
26; R. vol. I, at 310. For the sake of argument, we can assume that Ms.
Welch is correct. But the prosecutor’s alleged support for a 40-year
sentence would not require the district court to find bad faith.
The government had already fulfilled its promises in the written plea
agreement. At most, the prosecutor’s statement about a 40-year sentence
might have conflicted with the alleged oral promises. But those alleged
oral promises are unenforceable, and Ms. Welch did not rely on them. In
these circumstances, we uphold the district court’s factual finding that the
government had not acted in bad faith.
III. Conclusion
We affirm.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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