United States v. Scott

United States Court of Appeals
For the First Circuit

Nos. 16-1434, 16-1561

UNITED STATES OF AMERICA,

Appellee,

v.

MICHAEL DAVID SCOTT,

Defendant, Appellant.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nathaniel M. Gorton, U.S. District Judge]

Before

Howard, Chief Judge,
Thompson and Kayatta, Circuit Judges.

Lisa Aidlin for appellant.
David B. Goodhand, Attorney, U.S. Department of Justice,
Criminal Division, Appellate Section, with whom William D.
Weinreb, Acting U.S. Attorney, Victor A. Wild, Assistant U.S.
Attorney, Ryan M. DiSantis, Assistant U.S. Attorney, Kenneth A.
Blanco, Acting Assistant Attorney General, U.S. Department of
Justice, and Trevor N. McFadden, Acting Principal Deputy Assistant
Attorney General, U.S. Department of Justice, were on brief, for
appellee.

December 8, 2017
 KAYATTA, Circuit Judge. Michael David Scott claims,

among other things, that the district court acted improperly in

rejecting a plea agreement he had negotiated with the government,

in not allowing him to negotiate and submit a new agreement, and

in sentencing him before he read the presentence report ("PSR").

Finding no combination of error and prejudice sufficient to set

aside Scott's sentence, we affirm.

I. Background

In August 2010, the government charged Scott with wire

and bank fraud in violation of 18 U.S.C §§ 1343–44 and unlawful

monetary transactions in violation of 18 U.S.C. § 1957, all as

described in our opinion issued today affirming Scott's conviction

on those charges. See United States v. Scott, No. 15-2405. While

those charges were pending, the government secured Scott's

indictment on additional wire fraud charges arising out of acts

committed after his first indictment. Scott was arrested and

detained pending trial.

In May 2015, Scott pled guilty in the first case, without

a plea agreement. In November 2015, the district court sentenced

him to 135 months' imprisonment in that case. Two months later,

Scott and the government entered into a plea agreement in this

second case pursuant to Federal Rule of Criminal

Procedure 11(c)(1)(C). If accepted by the court, the agreement

would have bound the court to sentence Scott to six months'

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imprisonment on the new wire fraud charges, to be served

concurrently with the term of imprisonment from the prior case,

plus six additional months to be served consecutively to Scott's

other sentences in accord with 18 U.S.C. § 3147, which mandates

that an individual convicted of a crime committed while on release

pending trial serve an additional sentence. The agreement also

called for $49,000 in restitution, an amount that did not include

attorneys' fees and interest for the victims, and likewise did not

include losses related to certain uncharged conduct. The district

court conducted a change-of-plea hearing and conditionally

accepted the plea agreement, but noted that it would reserve final

acceptance or rejection until it had considered the PSR.

Sentencing was set for March 25, 2016.

On March 23, a group of victims filed a sentencing

memorandum, urging the district court to reject the proposed plea

agreement and impose, at a minimum, a consecutive prison term of

at least twelve months and a restitution award that included

attorneys' fees and interest. The next day, the district court

docketed a notice stating: "Having considered the presentence

report and the Victim's sentencing memorandum . . . the Court

hereby notifies the parties . . . of its intention to reject the

. . . plea . . . . The Court concludes that any consecutive

sentence of incarceration of less than 12 months . . . is

insufficient." The next day, counsel for Scott told the district

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court at the sentencing hearing that he had conferred with the

government and prepared "a revised agreement to submit to you with

what we interpreted as the considerations within your order."

Neither counsel disclosed the terms of the proposed submission,

and the district court rejected the effort, saying:

[A]s I understand [Rule 11], . . . the
defendant has a choice when the judicial
officer rejects a (C) plea: He can withdraw
his plea and go to trial. . . . Or he can
choose not to withdraw his plea and go forward
with the sentencing as of that moment. There
is no new plea to be negotiated.

The record reflects that Scott and his attorney then had a private

conversation, following which Scott's attorney, in Scott's

presence, told the court that Scott intended to maintain his guilty

plea and move forward with sentencing. The district court then

proceeded with the sentencing, ultimately imposing a sentence of

forty-one months' imprisonment, with twenty-nine months attributed

to the wire fraud charge to be served concurrently with Scott's

135-month sentence and twelve months attributed to section 3147 to

be served consecutively to both of Scott's other sentences. In

short, as a practical matter, this sentence meant that Scott would

likely serve six additional months of prison time beyond the amount

to which he and the government had conditionally agreed. The court

also ordered Scott to pay a total of $265,535 in restitution to

various victims identified by their initials in the PSR.

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 At the conclusion of the sentencing hearing, the

following exchange occurred:

MR. GLEASON [counsel for Scott]: Judge,
[Scott] wants to wish to express to the Court
that he did not see the Presentence Report and
that he was not aware of initials and people
being owed money on initials as being an issue
for purposes of the restitution.
DEFENDANT: Yes.
THE COURT: Does Probation wish to respond to
that?
MS. ROFFO [representative from the probation
office]: Your Honor, the Presentence Report
was disclosed to counsel, and counsel is to
share it with his client.
THE COURT: Mr. Gleason, you got the
Presentence Report, correct?
MR. GLEASON: Yes, we did, your Honor.
THE COURT: All right. Anything further, Mr.
Wild?
MR. WILD [Assistant U.S. Attorney]: Only on
the question that's usually asked, your Honor,
by the Court, is whether counsel and the
defendant have discussed it, and I'm assuming
they have.
THE COURT: You discussed the Presentence
Report with your client?
MR. GLEASON: I have, your Honor, I discussed
it. I discussed it with the original and that
it was the additional facts which were
presented relative to this charge.
THE COURT: Thank you. We're adjourned.

II. Discussion

Scott contends that the district court committed six

specific errors: it improperly rejected his plea agreement based

on an erroneous understanding of the relevant law; it impermissibly

prevented him from securing and submitting a new plea agreement

after his first was rejected; it impermissibly participated in

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plea discussions; it wrongly denied him a continuance; it imposed

a sentence even though he had not read the PSR; and it failed to

provide adequate notice of certain information upon which it

relied. Additionally, Scott argues that the cumulative effect of

these errors was sufficient to deny him a full and fair sentencing

hearing, in violation of his due process rights. We address each

argument separately.

A.

We consider first Scott's contention that the district

court's rejection of the plea agreement was substantively improper

because, in his view, the district court relied on an incorrect

interpretation of relevant law. Specifically, he submits that the

victims' sentencing memorandum erroneously claimed that the

portion of the sentence to run as a consecutive add-on under 18

U.S.C. § 3147 had to last a minimum of twelve months, and that the

district court relied on this incorrect interpretation of

section 3147 in rejecting the plea agreement.1

1 In the section of his opening brief dealing with this issue,
Scott also makes a three-sentence argument that the district court
and U.S. Probation Office erred in adopting the amount of
restitution from the victims themselves without a sufficient
evidentiary basis. The perfunctory nature of this argument waives
it. See Puerto Rico Tel. Co., Inc. v. San Juan Cable LLC, 874
F.3d 767, 770 (1st Cir. 2017). And in any event, this argument
would likely fail, as Scott makes no claim even now that the
amounts in question were inaccurate.

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 Scott did not present this argument to the district

court, so we review his claim for plain error. See United States

v. Uribe-Londoño, 409 F.3d 1, 3 (1st Cir. 2005). In order to

succeed on plain error review, Scott must show: "(1) that an error

occurred (2) which was clear or obvious and which not only

(3) affected the defendant's substantial rights, but also

(4) seriously impaired the fairness, integrity, or public

reputation of judicial proceedings." Id. at 4 (quoting United

States v. Negrón-Narváez, 403 F.3d 33, 37 (1st Cir. 2005)).

Mere speculation that a court may have erroneously

viewed its hands as tied by section 3147 serves poorly as a claim

that error even occurred, much less that such error is plain. The

district court said nothing to suggest that it felt bound by law

to extend the agreed-upon six-month consecutive sentence to twelve

months. As we have noted, we "presume that federal judges know

the law." United States v. Vega-Salgado, 769 F.3d 100, 104 (1st

Cir. 2014). The fact that section 3147, correctly applied, allows

the sentence imposed buttresses this conclusion. We take the

district court at its word that in rejecting the plea agreement,

it had simply concluded, well within its discretion, that only a

twelve-month consecutive sentence would be sufficient. In this,

there was no error, plain or otherwise.

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 B.

We turn next to Scott's argument that the district court

erred by not withholding sentencing until he had a chance to

finalize a new plea agreement. Following the rejection of the

plea agreement, Scott's counsel represented to the court that he

and the government had reached a revised agreement. The district

court, however, stated that it could not accept such an agreement,

because in its view, once a district court rejects a plea

agreement, the defendant has only two choices: maintain a guilty

plea unconditionally and proceed to sentencing, or withdraw the

plea and proceed to trial. The district court stated on the record

that under its view of Federal Rule of Criminal Procedure 11(c),

"[t]here is no new plea to be negotiated." Scott argues on appeal

that the district court was incorrect and that he should have been

permitted to negotiate a new plea agreement.

The question of whether the government and a defendant

may negotiate and submit a new plea agreement after one is rejected

by the court appears to be a matter of first impression in this

circuit. Rule 11(c)(5) specifies that in rejecting a plea

agreement made pursuant to Rule 11(c)(1)(A) or (C), a district

court must inform the parties of the rejection, advise the

defendant that the court is not required to follow the agreement,

give the defendant an opportunity to withdraw the plea, and advise

the defendant that "if the plea is not withdrawn, the court may

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dispose of the case less favorably toward the defendant than the

plea agreement contemplated." Nothing in Rule 11 requires (or

even suggests) that a defendant only gets one bite at the

negotiation apple. And as Scott points out, other circuits have

implied that renegotiation is permissible in the face of a rejected

plea. See United States v. Kraus, 137 F.3d 447, 449 (7th Cir.

1998); United States v. Mukai, 26 F.3d 953, 956–57 (9th Cir. 1994);

United States v. Olesen, 920 F.2d 538, 543 (8th Cir. 1990).

We are at a loss to see any good reason why a defendant

could not negotiate a new plea agreement with the government and

submit it to the district court in the wake of that court's

rejection of a Rule 11(c)(1)(C) agreement. Even on appeal, the

government makes no claim that such an option is foreclosed. It

may be true, as the government argues, that to renegotiate and

submit a new plea agreement, a defendant must necessarily withdraw

his or her existing plea, which Scott did not choose to do. But

Scott and his attorney could have easily interpreted the district

court as stating that it would consider no additional submissions

even if he withdrew his plea.

Whether the district court therefore erred in its

comments, we need not finally decide. Assuming such an error

occurred, it was harmless. As noted above, the district court

determined that only a twelve-month consecutive sentence would be

sufficient. This was, as the district court stated, the bare

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minimum it would accept. And as it turned out, it was exactly the

sentence that the district court imposed.

Scott argues that, had he been permitted to negotiate

and submit a new agreement, he might have done better. But even

though his counsel apparently discussed with the government a new

agreement to be offered to the court, he can give us no reason to

think that the government would have agreed to recommend a

consecutive sentence below twelve months after the district court

rejected six months. Nor does he give us any reason to believe

that the district court would have accepted such a recommendation

given that it had already rejected the government's agreement to

a six-month sentence. Thus, any error committed here placed Scott

in no worse a position than he would have been in had he been given

the opportunity to negotiate a new plea. In short, by any measure,

the assumed error on this point was harmless.

C.

Scott next claims that the district court improperly

inserted itself into plea negotiations when it notified the parties

that it believed anything less than a twelve-month sentence to be

insufficient. Scott did not raise this issue in the district

court, so we once again review for plain error.

A district court necessarily walks a fine line in

rejecting a plea agreement. On the one hand, it may perceive a

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need to explain why it is rejecting the agreement.2 On the other

hand, it may need to avoid suggesting the particular terms upon

which the parties need agree to secure approval. See Kraus, 137

F.3d at 453–55; see also United States v. Miles, 10 F.3d 1135,

1139–40 (5th Cir. 1993). To safely walk this line in this case,

the district court might have simply explained that it rejected

the agreement because the six-month duration of the consecutive

portion of the sentence was too lenient, and because the

restitution award did not cover attorneys' fees and interest.

Arguably, the district court crossed the line here when it further

explained that nothing less than twelve months' imprisonment,

served consecutively to Scott's other sentences, would be

sufficient.

As we have observed, though, Scott did not argue to the

district court that it had crossed such a line, nor did he lodge

2 We have not decided whether such an explanation is required,
while those circuits that have done so have given conflicting
directions. Compare Kraus, 137 F.3d at 453 (holding that a
district court must offer its reasons for rejecting a plea
agreement and collecting cases) and United States v. Moore, 916
F.2d 1131, 1136 (6th Cir. 1990) (same) with United States v. Lee,
265 F. App'x 763, 766 (11th Cir. 2008) (stating that a district
court need not offer reasons for its rejection of a plea) (citing
United States v. Bean, 564 F.2d 700, 702 n.3 (5th Cir. 1977)) and
United States v. Moore, 637 F.2d 1194, 1196 (8th Cir. 1981) (same).
See also United States v. Foy, 28 F.3d 464, 472 (5th Cir. 1994)
(holding that the district court need not state on the record its
reasons for rejecting a plea agreement provided that "the record
as a whole renders the basis of the decision reasonably apparent
to the reviewing court").

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any objection on that basis. So on plain error review, he must

show, among other things, that there was clear and obvious error,

and that it affected his substantial rights. He falls short on

both counts. The circuits have not clearly spoken as to how much

information a district court must offer a defendant when rejecting

a guilty plea (and how much information is too much), and the issue

is undecided in this circuit. This strongly suggests that, the

error, if any, was not clear and obvious. Nor did any error affect

Scott's substantial rights. While Scott could conceivably find

prejudice if he had a credible argument that, absent the court's

comments, he would have gone to trial and thus had the possibility

of an acquittal, see United States v. Bierd, 217 F.3d 15, 19 (1st

Cir. 2000), he does not now seek to avoid his plea and go to trial;

he merely requests resentencing.

Contrary to Scott's contention, the district court's

comments do not create the appearance of impropriety, another

concern underlying the prohibition on judicial involvement in plea

negotiations. See id. ("[T]he interests of justice are best served

if the judge remains aloof from all discussions preliminary to the

determination of guilt or innocence so that his impartiality and

objectivity shall not be open to any question or suspicion when it

becomes his duty to impose sentence.") (quoting United States v.

Werker, 535 F.2d 198, 203 (2d Cir. 1976)). The district court's

suggestion that nothing less than a twelve-month sentence would be

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sufficient did not occur "preliminary to the determination of

guilt." Id. Rather, it came after a guilty plea had been tendered.

And it was not based on rank speculation, but upon information

gleaned from the PSR and victims' sentencing memorandum, exactly

the type of information that should inform a district court's

sentencing decisions.

Moreover, the six-month difference between the parties

agreed-upon six-month consecutive sentence and the twelve months

ultimately imposed is, in the context of the ten-year maximum

sentence permissible under section 3147, so fine as to render it

inconceivable that the judge's mention of the twelve-month figure

reduced Scott's ability to secure a non-binding plea that would

have caused the district court to impose a shorter sentence. To

conclude otherwise would require us to hypothesize that had the

district court not made the statement it did, but merely rejected

the sentence as too lenient, it would have accepted an agreement

providing for some consecutive sentence between six and twelve

months. Such hypothesizing carries too little weight for plain

error review, which by its nature places a "heavy burden" on the

party seeking reversal. See United States v. Latorre-Cacho, 874

F.3d 299, 303 (1st Cir. 2017) (quoting United States v. Prieto,

812 F.3d 6, 17 (1st Cir. 2016)).

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 D.

Scott's attorney brought to the district court's

attention Scott's claim that he had not seen the PSR and was not

aware of the restitution information it contained. The government

also conceded at oral argument on appeal that the issue was

preserved. We review preserved claims of Rule 32 violations de

novo, and will remand if there is error that is not harmless. See

United States v. González-Vélez, 587 F.3d 494, 508–09 (1st Cir.

2009).

Federal Rules of Criminal Procedure 32(c) and (d)

require that the U.S. Probation Office conduct an investigation

and prepare a PSR. The PSR is to contain a variety of information

concerning the application of the sentencing guidelines given the

offense and the offender, including "information sufficient for a

restitution order" if the applicable "law provides for

restitution." Fed. R. Crim. P. 32(d)(2)(D). Rule 32(i)(1)(A)

requires the district court to verify at the sentencing hearing

"that the defendant and the defendant's attorney have read and

discussed the presentence report and any addendum to the report."

We have said in the past that the "better practice" in

complying with Rule 32 is for district courts "to address the

defendant directly in order to establish that he or she has had

the opportunity to read the PSR and to discuss it with his/her

counsel." United States v. DeLeon, 704 F.3d 189, 196 (1st Cir.

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2013) (brackets omitted) (quoting United States v. Manrique, 959

F.2d 1155, 1157–58 (1st Cir. 1992)). The district court did not

do so here. As a result, we cannot say that it is clear that Scott

was familiar with the substance of the final PSR. Cf. id. ("[I]f

it is abundantly clear from the sentencing hearing that both

defendant and his counsel are familiar with the report, a new

sentencing hearing will not be mandated, even if the court failed

to directly inquire whether the defendant had an opportunity to

review the report.") (quoting Manrique, 959 F.2d at 1157).

That being said, the record is clear that any error was

harmless. The only potential prejudice Scott identifies relates

to the restitution award. Scott argues that the PSR contained

three uncharged relevant matters that added an additional $142,500

to the restitution amount, and that because he had not reviewed

the PSR, he had no opportunity to challenge this portion of the

sentence. The problem for Scott is that, even now, he has not

identified any deficiency in these readily verifiable

calculations. Furthermore, he has made no legal argument that

this uncharged conduct could not serve as the basis for a

restitution award. Put simply, Scott has made no argument to this

court that the result would have been any different had he read

the PSR in full. So, if there was error in how the district court

treated Scott's statement regarding the PSR, it was harmless.

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 E.

The day before the sentencing hearing, Scott moved for

a continuance on the ground that his counsel had a conflict due to

a trial in another court. The district court denied the request.

As it turned out, Scott's counsel appeared at the hearing, seemed

prepared, and made no claim otherwise. We reverse a district

court's denial of a motion to continue only for "'manifest abuse

of discretion' where the district court 'indulged a serious error

of law or suffered a meaningful lapse of judgment, resulting in

substantial prejudice to the movant.'" West v. United States, 631

F.3d 563, 568 (1st Cir. 2011) (emphasis added) (quoting United

States v. Saccoccia, 58 F.3d 754, 770 (1st Cir. 1995)). Given the

very strong presumption against reversal on this basis, we will

not reverse here, where there was no manifest error of law and no

obvious prejudice in denying the continuance.

In an attempt to argue otherwise, Scott notes that

shortly after denying the request to continue based on counsel's

scheduling conflict, the district court also announced that it

would reject the plea agreement. Scott's argument seems to be

that his counsel needed more time to consider and take steps in

response to that news. Scott, though, never moved for a

continuance for that reason. Nor did his counsel claim that more

time was needed. To the contrary, he said he would "like to go

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forward." No rule or precedent requires a court in such a

situation to continue a hearing sua sponte.

F.

Scott also argues that he had insufficient notice of the

victims' sentencing memorandum, and of the fact that the district

court would rely upon it in sentencing him.3 Though "[a] district

court has broad discretion in the information it may receive and

consider" in determining a sentence, "a defendant has a due process

right to be sentenced upon information which is not false or

materially incorrect." United States v. Curran, 926 F.2d 59, 61

(1st Cir. 1991). To protect this right, "a defendant must be

provided with a meaningful opportunity to comment on the factual

information on which his or her sentence is based." United States

v. Rivera-Rodríguez, 489 F.3d 48, 53–54 (1st Cir. 2007) (quoting

United States v. Berzon, 941 F.2d 8, 10 (1st Cir. 1991)). If a

court considers information outside the PSR, such as the victims'

3 At various points throughout his brief, Scott suggests that
the district court also erred in failing to provide him notice
that it would rely upon the victims' sentencing memorandum in
rejecting the plea agreement. He does not develop this argument,
however, and thus waives it. See United States v. Corbett, 870
F.3d 21, 33–34 (1st Cir. 2017) (deeming an argument waived where
a party failed "to meaningfully develop [it] or support it with
any authority"). In any event, the argument would likely fail;
Scott cites no authority, and we are aware of none, supporting the
proposition that Rule 11 or due process more generally require
that a district court notify a defendant, prior to the rejection
of a plea agreement, that it may consider certain information in
reaching that decision.

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sentencing memorandum at issue here, it "should disclose to the

defendant as much as was relied upon, in a timely manner, so as to

afford the defendant a fair opportunity to examine and challenge

it." Curran, 926 F.2d at 63.

The victims' sentencing memorandum was filed two days

before the hearing, with the court's notice that it was planning

to reject the plea agreement appearing on the docket just the day

before. Certainly that may have allowed too little time within

which to "examine and challenge" any asserted facts. Scott,

though, made no request for any such additional time on that basis,

nor claimed that he saw any such need. Nor was this surprising;

the memorandum contained no facts that Scott disputes even now.

Rather, the only facts tendered consisted of a general description

of Scott's criminal activity as it related to the victims, of their

losses, including attorneys' fees, and of details relating to

settlement discussions.

In any event, Scott's acquiescence below leaves him to

argue, again, that it was plain error for the district court not

to have sua sponte continued the sentencing because the victims

filed their memorandum. And again, Scott cites no authority that

mandates such a sua sponte continuance. With no authority

suggesting such a continuance was required, there was no "clear or

obvious" error, and thus Scott cannot succeed on plain error

review.

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 G.

Scott's final claim is that the preceding errors or

assumed errors, even if insignificant individually, nonetheless

had a strong enough cumulative effect as to render his sentencing

hearing violative of due process. We disagree.

It is true that "[i]ndividual errors, insufficient in

themselves to necessitate [reversal], may in the aggregate have a

more debilitating effect." United States v. Sepulveda, 15 F.3d

1161, 1195–96 (1st Cir. 1993). As the preceding discussion makes

clear, however, many of the errors asserted by Scott were not, in

fact, errors. Furthermore, the harmlessness of any potential

errors all stemmed from the same fact; namely, that the record is

clear that the district court imposed the lowest sentence it

believed sufficient for the offense, and that sentence was well

below what the court in its discretion could have imposed. At

bottom, Scott has simply made no showing that the district court

committed any errors that either individually or cumulatively

could have adversely affected the sentence that he received.

III. Conclusion

For the foregoing reasons, we affirm the judgment of the

district court.

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