[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOVEMBER 21, 2006
No. 06-10884 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-00004-CR-JTC-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RICHARD G. HUTCHESON,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(November 21, 2006)
Before BARKETT, MARCUS and WILSON , Circuit Judges.
PER CURIAM:
Richard G. Hutcheson appeals his 54-month sentence for mail fraud,
violation of 18 U.S.C. §§ 1341 and 1346. According to the terms of his plea
agreement, the government agreed to disclose, at sentencing, the extent of
Hutcheson’s cooperation and to recommend a sentence at the low end of the
guideline range. At the sentencing hearing, Hutcheson presented four character
witnesses testifying on his behalf, and he and his counsel testified as to
Hutcheson’s acceptance of responsibility and cooperation with authorities. The
government responded by making a low-end recommendation, expressly noting
that it was doing so pursuant to the plea agreement. Immediately following this
recommendation, however, the government proceeded to list aggravating factors
illustrating the seriousness of Hutcheson’s offense. The district court
acknowledged mitigation as a result of Hutcheson’s cooperation, but ultimately
concluded that the guideline range of 46 to 57 months was appropriate based on
the seriousness of the offense. Hutcheson did not object either to the sentence or to
the manner in which it was imposed.
On appeal, Hutcheson argues that the government breached his plea
agreement and requests that we remand his case for re-sentencing. He argues that
the government improperly failed to make the extent of his cooperation known to
the district court, and contradicted its low-end sentence recommendation.
A material promise by the government, which induces the defendant to plead
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guilty, binds the government to that promise. Santobello v. New York, 404 U.S.
257, 262, 92 S.Ct. 495, 499, 30 L.Ed.2d 427 (1971). When a plea rests in any
significant portion on the government’s promise or agreement, so that it becomes
part of the inducement or consideration, such promise must be fulfilled. Id.
“Whether the government violated the agreement is judged according to the
defendant’s reasonable understanding of the agreement at the time he entered the
plea.” United States v. Rewis, 969 F.2d 985, 988 (11th Cir. 1992). For the
government expressly to agree to recommend a position and then advocate a
contrary position is a clear breach of a plea agreement. See United States v.
Taylor, 77 F.3d 368, 370-371 (11th Cir. 1996). In Taylor, the government
affirmatively advocated to the district court positions that contradicted its express
obligations under the plea agreements. Id. A recommendation by the government
that merely provides “lip service” to the plea agreement does not rectify the breach.
Id. at 371.
Here, when asked what its position was as to Hutcheson’s sentence, the
government initially responded that “pursuant to the plea agreement [it] agreed to
recommend the low end of the. . .applicable guideline range,” and thus made that
recommendation. (R3 at 10). Immediately following this recommendation,
however, the government stated the following:
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I do note, though, your honor, the factors of [18 U.S.C. §] 3553
counsel a sentence I think within that guideline range [based on] the
seriousness of the offense and nature and circumstances. This was a
crime that went on for over ten years that involved over $2 million, it
had a substantial impact upon the victim, the hospital here, also
collateral impact to the extent of funds [the hospital] had to expend to
unravel this web of deceit that Mr. Hutcheson carried out, and Mr.
Hutcheson involved other people in that deceit as well, and the
collateral impact on them.I think a sentence within the guideline range
would promote respect for the law [and] would provide just
punishment for the defendant in this case and would reflect his
cooperation, and to the extent that he has already made some
restitution for that.
(Id. at 10-11). The district court then stated that, “in view of the amount of the
loss, which was certainly considerable, the length of time which the fraud or
embezzlement went on, and the fact that it was a community hospital,. . .it [was]
certainly a serious offense.” (Id. at 11). The district court acknowledged that
Hutcheson’s offense was “somewhat mitigated by [his] cooperation” and that he
was “entitled to acceptance of responsibility,” but nonetheless concluded that the
guideline range was “an appropriate range of punishment” based on “the
seriousness [of the offense], the amount of money involved, [and] the amount of
restitution still remaining due.” (Id. at 11-12) The district court ultimately
sentenced Hutcheson to 54 months’ imprisonment, and Hutcheson made no
objections to the PSI or to the application of the guidelines. (Id. at 13-14).
The government advocated a position contrary to its obligation when it
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focused on aggravating factors that were inconsistent with a low-end sentence. See
Taylor, 77 F.3d at 370-71. Hutcheson reasonably could have expected that the
government would refrain from suggesting a harsher sentence. See Rewis, 969
F.2d at 988. The government does not dispute Hutcheson’s understanding, but
instead insists that it fulfilled its obligation to report the extent of Hutcheson’s
cooperation and recommend a sentence at the low end of the guidelines. Further,
although the government reserved the right to inform the court of all the facts and
circumstances of his case, and suggests that it made these statements simply as a
threshold matter, it appears from the record that the government’s comments were
not intended to provide information but rather to suggest a harsher sentence. See
Taylor, 77 F.3d at 370-71.
The government was also bound by its promise to disclose the extent of
Hutcheson’s cooperation to the district court at the sentencing hearing. See
Santobello, 404 U.S. at 262, 92 S.Ct. at 499. Although the government contends
that its disclosure to the probation officer, for inclusion in the PSI, was sufficient,
the language of the plea agreement does not necessarily lead to that conclusion.
The agreement stated that the government would “make the extent of
[Hutcheson’s] cooperation known to the sentencing court.” (See R1-4 at 4).
Whether that language can be read to encompass the actions taken by the
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government is at best unclear and ambiguous, and thus, it appears that the
government may have breached the plea agreement on this point as well.
However, irrespective of any breach, Hutcheson must still show plain error
in order for us to remand for resentencing, because he did not raise any such
objection to his sentence when it was imposed. As we have previously held, if “the
district court affords a defendant an opportunity to object after the imposition of
sentence, and he fails to do so, any objections to the sentence are barred absent
manifest injustice. [We] equate[] the manifest injustice inquiry with review for
plain error.” United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).
Under plain error review, there must be (1) an error, (2) that is plain, and (3) that
affects substantial rights. United States v. Shelton, 400 F.3d 1325, 1328-29 (11th
Cir. 2005), cert. denied, 126 S.Ct. 1809 (2006). If these three prongs are met, we
may exercise our discretion to notice this error if it seriously affects the fairness,
integrity, or public reputation of judicial proceedings. Id. at 1329 (citation
omitted).
Hutcheson has not carried his burden under the third prong of the plain error
test. For an error to affect substantial rights, “in most cases it means that the error
must have been prejudicial: It must have affected the outcome of the district court
proceedings.” United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 1778,
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123 L.Ed.2d 508 (1993); United States v. Rodriguez, 398 F.3d 1291, 1299, 1306
(11th Cir.) cert denied, 125 S. Ct. 2935 (2005). When addressing the prejudice
prong of plain error review in the context of a sentence imposed after the breach of
a plea agreement, we have found plain error where the breach resulted in a higher
sentencing range under the guidelines. United States v. Romano, 314 F.3d 1279,
1281-82 (11th Cir. 2002). Conversely, we have refused to remand for resentencing
where there was no effect on a defendant’s sentence. United States v. Forney, 9
F.3d 1492, 1503-04 (11th Cir. 1993).
Hutcheson did not receive a sentence within a higher range, see Romano,
314 F.3d at 1281-82, and arguably a remand would not effect his sentence based on
the district court’s findings, see Forney, 9 F.3d at 1503-04. The district court in
fact expressly acknowledged Hutcheson’s cooperation, noting that his offense was
“somewhat mitigated.” (See R3 at 10-11). Furthermore, even though the
government may have inappropriately emphasized aggravating factors, in violation
of the agreement, all of the disclosed information was contained in the PSI and
thereby known to the district court. (See PSI ¶¶ 5-26). Thus, even if Hutcheson
has established a breach, he has not established that the government’s breach
affected his substantial rights because it was not likely to have affected the
outcome of his sentencing. See Olano, 507 U.S. at 734, 113 S.Ct. at 1778.
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Accordingly, Hutcheson cannot meet the third prong of the plain error test, and we
must affirm his sentence.
AFFIRMED.
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