FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-10118
Plaintiff-Appellee, D.C. No.
v. 2:09-cr-00149-
SCOTT EDWARD WHITNEY, FCD-2
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Argued and Submitted
October 11, 2011—San Francisco, California
Filed March 7, 2012
Before: Betty B. Fletcher, Stephen Reinhardt, and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge Reinhardt
2659
UNITED STATES v. WHITNEY 2663
COUNSEL
Tim Warriner, Sacramento, California, for the appellant.
Samantha S. Spangler (argued), Assistant United States Attor-
ney, Benjamin B. Wagner, United States Attorney, Sacra-
mento, California, for the appellee.
OPINION
REINHARDT, Circuit Judge:
Scott Edward Whitney appeals his 87-month sentence on a
guilty plea to a one-count indictment under 18 U.S.C. § 286.
He contends that the U.S. Attorney breached the parties’ plea
agreement by disclosing admissions made by Whitney while
cooperating with the government, and by urging imposition of
a sentence above the low end of the Sentencing Guidelines.
He also contends that the district court erred by improperly
imposing a two-level leadership enhancement. We hold that
the breach of the plea agreement by the U.S. Attorney resulted
in plain error that affected Whitney’s substantial rights. We
additionally hold that the district court committed clear error
when it imposed a two-level role enhancement for Whitney’s
alleged role as a leader or organizer pursuant to U.S.S.G.
§ 3B1.1(c). Accordingly, we vacate Whitney’s sentence and
remand for resentencing before a different judge.1
1
The judge who presided over the sentencing is now retired. We would,
however, be required to reassign the case in any event. United States v.
Camper, 66 F.3d 229, 233 (9th Cir. 1995) (holding that under Santobello
v. New York, 404 U.S. 257 (1971), resentencing after a remand for specific
performance of a plea bargain must be performed by a different judge).
2664 UNITED STATES v. WHITNEY
BACKGROUND
Scott Edward Whitney entered into a plea agreement with
the government in which he agreed to plead guilty to one
count of conspiracy to defraud the government by filing false
claims, 28 U.S.C. § 286. This charge was based on Whitney’s
role in a scheme to file false tax returns using inmate identi-
ties and personal information while he was incarcerated in
Herlong Federal Correctional Institution (“Herlong”) for a
similar offense. In exchange for Whitney’s guilty plea, his
promise of full cooperation with the government, and a lim-
ited waiver of his right to appeal, Whitney received from the
government a number of promises related to sentencing.
Among those relevant to this appeal are the government’s rep-
resentations that it would recommend to the court that Whit-
ney be sentenced to the low end of the applicable guideline
range for his offense, and that in its effort to establish the
applicable sentencing guideline range it would not use any
incriminating information divulged by Whitney during the
course of his cooperation.2 The plea agreement included a
number of stipulations regarding the calculation of Whitney’s
sentence, including his base offense level, but contained no
stipulation related to his role in the offense. To the contrary,
the plea agreement explicitly reserved to both the defendant
and the government the right to argue their respective posi-
tions as to whether Whitney should receive a two-level
enhancement for his role in the offense.3 The agreement also
precluded either party from arguing in support of any depar-
ture from the Sentencing Guidelines.
2
Prior to entering into the plea agreement, the government also stipu-
lated in an informal immunity agreement with Whitney that the informa-
tion he provided during the course of his cooperation would not be used
against him for sentencing purposes.
3
The specific language from the plea agreement stated that the “govern-
ment may argue that a two-level enhancement is appropriate; defendant
may argue it does not apply.”
UNITED STATES v. WHITNEY 2665
The presentence report identified three participants: Whit-
ney, Paucar, who was another Herlong inmate who recruited
Whitney to participate in this scheme, and Alexander, also a
Herlong inmate, who was connected to the scheme through
Paucar. It also reported that the investigating IRS agents were
unable to discover whether the inmates identities and personal
information used to complete the tax returns were obtained
fraudulently or were supplied voluntarily by the inmates
named on the returns. According to the report, at Paucar’s
request Whitney supplied him with tax forms and information
on filing false returns. Whitney admitted to filing his own
false return as well as false returns using other inmates’ iden-
tities.
The presentence report concluded that Whitney should
receive a two-level upward role adjustment pursuant to
U.S.S.G. § 3B1.1, based on his role managing the completion
of the fraudulent tax forms. The probation officer determined
that based on Whitney’s criminal history category and offense
level, including the two-level role enhancement, the corre-
sponding sentencing guideline range was 41 to 51 months.
The probation officer nonetheless suggested an upward depar-
ture to 87 months to reflect the seriousness of the offense and
Whitney’s lengthy criminal history.
At Whitney’s sentencing, the judge took note of the presen-
tence report and commented on Whitney’s “impressive” crim-
inal history. The judge heard first from Whitney’s attorney,
Dorfman, who pointed out that the plea agreement permitted
him to argue that Whitney should not receive a role enhance-
ment. Dorfman did not contest the findings included in the
presentence report, but asserted that its conclusion was incor-
rect and contended that the enhancement was not appropriate
because Whitney was not a leader or organizer but rather was
recruited by Paucar, as described in the report. Dorfman chal-
lenged the upward departure urged in the presentence report
claiming that Whitney “doesn’t harm society physically. He
2666 UNITED STATES v. WHITNEY
may harm society by being a thief, but he’s not a good thief.
. . . This is not a violent person.”
When the Assistant U.S. Attorney (“AUSA”) addressed the
court, she stated that the government was “recommending the
low end of the guidelines as we have obligated ourselves to
do.” She then urged the imposition of the role enhancement,
contending that while “Mr. Whitney is not the brain power
behind this particular scheme . . . he did take a leadership
role.” She went on to say:
I have to tell you this puts me between a rock and a
hard spot. On the one hand when I sat down with
Mr. Whitney I agreed not to use any of his informa-
tion supplied to us during his debriefing against him
for sentencing purposes. On the other hand, he’s now
trying to pull something that I can’t let him get away
with. I have to be honest. He’s supplied information
to me during his debriefing session that put himself
in a supervisory role, a two-level increase. I can’t
just ignore that and say: No it did not happen, to be
honest with the court. Whether he’s a thief but not
a good one, I think it’s important for the court to
realize that one of his supervised release violations
provides that essentially he was using the informa-
tion from the underlying case to try to re-victimize
the victims. He was using fraudulently obtained
information to try to re-victimize the victims in the
case. So I think that rebuts the claim that he’s not a
good thief.
The court responded, calling Whitney an “incorrigible nar-
cissistic thief” and predicted that he would inevitably re-
offend by again stealing identities. The court determined that
Whitney should receive the two-level role enhancement, cit-
ing his “complicit[y]” in the fraud, and recognizing that
although “no one says [Whitney] is the ring leader as such[,
he is] the guy that facilitated the crime.” With this two-level
UNITED STATES v. WHITNEY 2667
enhancement, Whitney’s adjusted offense level was fifteen.
Combined with his criminal history category of six, the corre-
sponding guideline sentence was 41 to 51 months. The court
departed upward from the guidelines to impose a sentence of
87 months, citing the “protection of the public and deter-
rence” as the primary bases for its departure. Whitney
appealed his sentence.
DISCUSSION
I.
A defendant’s claim that the government breached its plea
agreement is generally reviewed de novo. See United States
v. Mondragon, 228 F.3d 978, 980 (9th Cir. 2000). In this case
however, Whitney’s counsel failed to object to the prosecu-
tor’s statements at sentencing. When a defendant forfeits his
claim by failing to make a timely objection, we must review
that claim for plain error. United States v. Cannel, 517, F.3d
1172, 1175-77 (9th Cir. 2008); see also Puckett v. United
States, 129 S.Ct. 1423, 1428 (2009) (holding that a procedur-
ally forfeited error is subject to plain error review). “Relief for
plain error is available if there has been (1) error; (2) that was
plain; (3) that affected substantial rights; and (4) that seriously
affected the fairness, integrity, or public reputation of the
judicial proceedings.” Cannel, 517 F.3d at 1176.
A. Clear Breach
[1] The Supreme Court has recognized that the govern-
ment’s breach of the parties’ plea agreement is “undoubtedly
a violation of the defendant’s rights.” Puckett, 129 S.Ct. at
1429. In this case, the U.S. Attorney breached the plea agree-
ment in two respects. First, the AUSA stated that she had
“agreed not to use any of [Whitney’s] information supplied
. . . during his debriefing against him for sentencing pur-
poses,” but went on to tell the court that Whitney “supplied
information to [her] during his debriefing session that put
2668 UNITED STATES v. WHITNEY
him[ ] in a supervisory role.” Not only was this statement in
clear breach of the plea agreement, but the government admit-
ted that it was violating the agreement in the course of the
very same statement.4
[2] Second, the government breached its agreement by
implicitly arguing for a sentence greater than the terms of the
plea agreement specified that the prosecution would recom-
mend: the low end of the applicable guideline range.
Although a sentencing recommendation need not be made
enthusiastically, United States v. Johnson, 187 F.3d at 1135,
when the government obligates itself to make a recommenda-
tion at the low end of the guidelines range, it may not intro-
duce information that serves no purpose but “to influence the
court to give a higher sentence.” Id. This prohibition pre-
cludes referring to information that the court already has
before it, including statements related to the seriousness of the
defendant’s prior record, Mondragon, 228 F.3d 978, “state-
ments indicating a preference for a harsher sentence,” United
States v. Franco-Lopez, 312 F.3d 984, 992 (9th Cir. 2002)
(quoting Johnson, 187 F.3d at 1135), or the introduction of
evidence that is irrelevant to any matter that the government
is permitted to argue. Johnson, 187 F.3d 1129. Such state-
4
The government contends that defense counsel’s assertion that Whit-
ney was not a leader was a breach of the plea bargain’s requirement that
the defendant testify truthfully in the course of his cooperation with the
government, and that this putative breach relieves it of its obligation not
to disclose any information previously provided to the government by
Whitney. This argument is without merit. The plea agreement explicitly
reserved to the defendant the right to argue against the role enhancement
and the government freely entered into the agreement. The government
cannot now contend that adherence to the terms of the plea agreement is
a breach. Moreover, the provision addressing the defendant’s obligation to
answer truthfully to questions refers to statements made as Whitney ful-
fills his commitment to cooperate with various law enforcement agencies,
and does not extend to legal arguments made by counsel at sentencing.
“Plea agreements are contracts, and the government is held to the literal
terms of the agreement,” United States v. Johnson, 187 F.3d 1129, 1134
(9th Cir. 1999).
UNITED STATES v. WHITNEY 2669
ments are recognized as introduced “solely for the purpose of
influencing the district court to sentence [the defendant] more
harshly.” Id. at 1135.
[3] In the instant case, the U.S. Attorney asserted that
Whitney was a “good thief,” and pointed to past offenses
already included in the record before the court to contend that
Whitney had “re-victimized” his victims from a previous
identity theft committed prior to the commission of this
offense. This conduct is substantively indistinguishable from
that in Mondragon, in which the prosecutor responded to the
defense’s characterization of the defendant’s crimes as
“petty” by pointing out the “serious nature” of the prior
offenses and noting the frequency of the defendant’s prior
failures to appear and instances of resisting arrest, all of
which were evident in the defendant’s record. 228 F.3d at
979. Here, as in Mondragon, “the [AUSA’s] comments did
not provide the district judge with any new information or
correct factual inaccuracies, [and therefore] the comments
could have been made for only one purpose: to influence the
district court to impose a harsher sentence than that suggested
by appellant’s counsel.” Id. at 980. In this case, the defendant
was precluded from requesting a below-guidelines sentence
by the parties’ contract, and he did not do so. Thus, the
AUSA’s statements, refuting the defense counsel’s character-
ization of Whitney’s criminal history, could only have been
intended as an argument for a sentence greater than the
within-guideline sentence requested by the defense.
Mondragon is distinguishable from this case but not in a
material respect. While Mondragon involved a plea agree-
ment that required the government to take no position with
regard to the defendant’s sentence and Whitney’s plea agree-
ment affirmatively required the prosecution to recommend a
sentence at the low end of the guidelines, the court recognized
the prosecutor’s statement in Mondragon as violative of the
parties’ agreement because it was an argument intended to
persuade the court to adopt a sentence higher than that advo-
2670 UNITED STATES v. WHITNEY
cated by the defendant’s counsel, not merely because it repre-
sented a “position.” The principles in Mondragon therefore
apply whenever the prosecutor’s statements serve no purpose
but to argue for a harsher sentence than that which he was
obligated to recommend.
The government’s position is that the advisory nature of the
guidelines renders it necessary for it to make an argument to
justify even its low-end guideline sentence recommendation.
It contends that in this case the court might have elected to
depart downward from the guideline range, and the statements
of the prosecutor were intended to ensure that such a depar-
ture would not occur. The government’s argument is disin-
genuous. Here, the defendant did not request a below-
guideline sentence, and, in fact, he could not do so under the
terms of his plea agreement. Additionally the presentence
report recommended a sentence that was more than double the
low-end guidelines range, and the district court gave no indi-
cation that it would consider imposing a sentence lower than
that which the government was obligated to recommend. The
government’s statements regarding Whitney’s criminal his-
tory and his success as a thief could only have been intended
to persuade the court to impose a sentence higher than the
within-guideline sentence that the defendant was bound to
request, and not to guard against an unsolicited downward
departure.
[4] Although the prosecutor uttered the requisite words by
recommending a sentence at the low-end of the guidelines,
her additional statements constituted an argument for a higher
sentence, breached the government’s obligation to recom-
mend a low-end Guideline sentence, and likely had an impact
on the far-above-guideline sentence imposed. We reject the
government’s contention that it was compelled to provide an
argument in order to support its low-end guidelines sentence
recommendations. To the contrary, permitting it to argue
implicitly for a harsher sentence when there is no indication
of a possible below-guidelines sentence would render its obli-
UNITED STATES v. WHITNEY 2671
gation to recommend a low-end sentence illusory. See
Franco-Lopez, 312 F.3d at 988-89 (recognizing that the gov-
ernment may breach its obligations under its plea agreement
by complying with the explicit terms of the agreement in such
a way that renders its promises illusory). In light of Mondra-
gon, the government’s breach was “clear or obvious under the
law,” United States v. Gonzalez-Zotelo, 556 F.3d 736, 741
(9th Cir. 2009) (internal quotation marks omitted). The prose-
cutor’s reference to inculpatory statements made by Whitney
during the course of his cooperation bore on the applicability
of the two-level sentencing enhancement as well and similarly
constituted an obvious breach. Both violations therefore sat-
isfy the first two prongs of plain error review — that there
must be an error and that it must be plain.
B. Affects Substantial Rights
[5] To prevail on plain error review, Whitney must addi-
tionally show that the government’s conduct affected both his
substantial rights and the integrity, fairness or public reputa-
tion of the judicial proceedings. Cannel, 517 F.3d at 1176. To
conclude that a defendant’s substantial rights were affected,
“there must be a reasonable probability that the error affected
the outcome of the [sentencing].” United States v. Marcus,
130 S.Ct. 2159, 2164 (2010). It is inherently difficult to iden-
tify the effect of any discrete set of errors on a district court’s
multifaceted sentencing determination. Nonetheless, breaches
of a plea agreement are not exempted from the plain error
requirement that prejudice be shown to a reasonable probabil-
ity, rather than assumed. Puckett, 129 S.Ct. 1423. A court
may determine that the defendant’s substantial rights were not
affected if he could not possibly have received his bargained-
for benefit even in the absence of the government’s breach, or
if he receives that benefit notwithstanding the breach. See id.
at 1432-33. In this case, the recommendation did not involve
the applicability of a sentencing reduction or enhancement
factor that may have been foreclosed for other reasons. Com-
pare Puckett, 129 S.Ct. at 1433 (recognizing that the defen-
2672 UNITED STATES v. WHITNEY
dant was ineligible for an acceptance of responsibility
reduction even in the absence of the government’s breach due
to his commission of additional post-plea offenses). Whitney
could have received any sentence within the statutory range.
The government’s recommendation regarding sentence length
was one factor to be weighed by the district court in arriving
at a sentence that takes many competing considerations into
account. See, e.g. United States v. Carty, 520 F.3d 984, 989-
94 (9th Cir. 2008) (en banc)(discussing considerations rele-
vant to sentencing decisions).
[6] It is likely that the government’s breaches affected
Whitney’s sentence in two distinct ways. First, Whitney was
prejudiced by the government’s disclosure that he made state-
ments during the course of his cooperation that purportedly
placed him in a supervisory role. The court was required to
determine whether a leadership enhancement was proper
based on facts within the record that would support such a
finding. As discussed more fully below, there were insuffi-
cient facts within the record to support the conclusion that
Whitney exercised the requisite supervision to support this
enhancement.5 Thus, it is likely that the government’s repre-
sentation that Whitney admitted to a leadership role influ-
enced the court’s overall view of the appropriate sentence
when it decided to depart from the 41 to 51 month range to
87 months, as well as its imposition of the two-level leader-
ship enhancement, see infra Part II, which increased the
guideline range that played an important part in the ultimate
calculation of Whitney’s sentence. Accordingly, we must con-
clude that it is probable that the AUSA’s breach of the non-
disclosure terms of its plea agreement affected Whitney’s sen-
tence and therefore his substantial rights.
[7] Second, taking the variable nature of sentencing into
account, it is likely that the government’s breach in implicitly
arguing for a harsher sentence rather than unequivocally
5
See infra Part II.
UNITED STATES v. WHITNEY 2673
expressing its preference for a low-end guideline sentence
deprived Whitney of an important consideration relevant to
the determination of his sentence and resulted in a higher sen-
tence than he would have otherwise received. This court has
previously recognized the importance of the government’s
sentencing recommendation as a bargained-for benefit to the
defendant, and held that the persuasive force behind a sen-
tencing recommendation is enhanced when it is urged by the
government in addition to the defense. See United States v.
Camarillo-Tello, 236 F.3d 1024, 1028 (9th Cir. 2001)
(“[W]hen the sentencing court hears that both sides believe a
certain sentence is appropriate and reasonable in the circum-
stances, this is more persuasive than only the defendant argu-
ing for that sentence.”). See also United States v. Alcala-
Sanchez, 666 F.3d 571(9th Cir. 2012). Whitney’s attorney
requested a within-guideline sentence while the probation
officer recommended a substantial upward departure. It is
probable that the court would have given some weight to the
government’s unambiguous recommendation of a low-end
guideline sentence. Because Whitney did not receive a sen-
tence on the low-end of the guideline range, we cannot say
that he received the benefit of his bargain. Additionally,
because a sentence lower than his 87-month punishment was
not foreclosed to him, and the sentence he received was more
than twice the low-end sentence in the guideline range, we
conclude that there is a reasonable probability that Whitney
was also prejudiced by the government’s breach in arguing
for a higher sentence.
C. Integrity of Judiciary
[8] The final consideration under plain error review is
whether the error affected the fairness and integrity of the
judiciary. A defendant forfeits many of his constitutional
rights when he enters into a plea agreement with the govern-
ment. In addition to sacrificing these rights, he relieves the
government of its burden to prove his guilt beyond a reason-
able doubt, and eliminates the need for the government to
2674 UNITED STATES v. WHITNEY
expend its limited time and resources on a full criminal trial.
He does so not out of a benevolent concern for the efficient
allocation of government resources, but in order to receive the
benefits of the bargain into which he has entered. The govern-
ment’s inducement of the defendant’s plea, and the conse-
quent forfeiture of his constitutionally-guaranteed rights,
requires that “a promise or agreement of the prosecutor . . .
must be fulfilled.” Santobello, 404 U.S. at 262. “The integrity
of our judicial system requires that the government strictly
comply with its obligations under a plea agreement.” Mondra-
gon, 228 F.3d at 981. In some cases, when the defendant him-
self has engaged in conduct that undermined the parties’
obligations, strict compliance is not necessary to ensure that
the integrity of the judiciary is maintained, notwithstanding
the government’s breach. See, e.g., Puckett, 129 S.Ct. 1423
(defendant’s additional crimes committed prior to sentencing
undermined the legitimacy of granting his bargained-for
acceptance of responsibility reduction).
[9] Here, both breaches undermined the integrity of the
judiciary and neither was justified by any misconduct on the
part of Whitney. With respect to the government’s improper
disclosure, its promise of non-disclosure initially made in the
informal immunity agreement as a part of the parties’ first dis-
cussions and reasserted in the plea agreement, induced Whit-
ney to make statements of a possibly inculpatory nature.
Allowing the government to breach its reciprocal obligation
would violate the judicially-sanctioned plea bargaining pro-
cess that requires that promises made by the government
which induce the forfeiture of the defendant’s rights must be
fulfilled. Similarly, the government promised to make a low-
end guideline sentence recommendation in return for Whit-
ney’s willingness to refrain from exercising a number of his
rights, including his right to argue for a below-guideline sen-
tence, his right to appeal a within-guideline sentence, and the
right to a jury trial to establish his guilt in the first instance.
Ignoring the government’s failure to adhere to this promise in
the face of Whitney’s own compliance would substantially
UNITED STATES v. WHITNEY 2675
challenge notions of fairness and integrity within the judi-
ciary. Thus, in the absence of clearly countervailing factors,
the government’s breach of the parties’ plea agreement must
be considered a serious violation of the integrity of the plea
bargain process and the judicial system.
[10] Whitney has satisfied all four requirements to show
that his sentence was affected by plain error, and he is entitled
to relief.
II.
Regardless of the government’s breaches of its plea agree-
ment, the imposition of the two-level leadership enhancement
by the district court was clear error and provides an alterna-
tive ground upon which Whitney’s sentence must be vacated.
[11] The Sentencing Guidelines allow for a two-level role
enhancement if a defendant is an “organizer, leader, manager,
or supervisor.” U.S.S.G. § 3B1.1(c). A court may impose this
enhancement if there is “evidence that the defendant exercised
some control over others involved in the commission of the
offense or was responsible for organizing others for the pur-
pose of carrying out the crime.” United States v. Ingham, 486
F.3d 1068, 1074 (9th Cir. 2007) (quoting United States v.
Avila, 95 F.3d 887, 889 (9th Cir. 1996)) (internal quotation
marks omitted). Under this circuit’s clear articulation of
§ 3B1.1(c), “even a defendant with an important role in an
offense” cannot receive an enhancement unless there is also
a “showing that the defendant had control over others.”
United States v. Lopez-Sandoval, 146 F.3d 712, 717 (9th Cir.
1998) (internal quotation omitted).6 This renders conduct
6
The government contends that the commentary to the 1993 amend-
ments to the Sentencing Guidelines altered the requirements for imposing
a leadership enhancement and permits the enhancement to be imposed
without evidence that the defendant exercised control over other persons.
The commentary attempts to reconcile a split among the circuits in the
2676 UNITED STATES v. WHITNEY
which may have been integral to the success of the criminal
enterprise, see United States v. Harper, 33 F.3d 1143, 1151
(9th Cir. 1994), or conduct that reflects a high degree of cul-
pability, United States v. Hoac, 990 F.2d 1099, 1111 (9th Cir.
1993), insufficient to support a leadership enhancement unless
the defendant also exercised the requisite control over others.
It is not necessary that the district court make specific find-
ings of fact to justify the imposition of the role enhancement.
Lopez-Sandoval, 146 F.3d at 717. There must, however, be
evidence in the record that would support the conclusion that
the defendant exercised the necessary level of control. Id. at
718. This factual determination is subject to review for clear
application of § 3B1.1, and states that “to qualify for an adjustment under
this section, the defendant must have been the organizer, leader, or super-
visor of one or more other participants.” U.S.S.G. § 3B1.1 cmt. n.2 (2011).
The commentary states further that an upward departure, as opposed to an
enhancement, “may be warranted, however, in the case of a defendant who
nevertheless exercised management responsibility over the property,
assets, or activities of a criminal organization.” Id. The government’s reli-
ance on the commentary is therefore misplaced. As this and other circuits
have continued to recognize in cases following the adoption of the 1993
amendments, the guideline-mandated enhancement is proper only if the
defendant exercised the requisite control over others. See United States v.
Salcido-Corrales, 249 F.3d 1151, 1154 (9th Cir. 2001) (“[T]o sustain a
finding that a defendant in fact played one of the four specified roles, there
must be evidence that the defendant exercised some control over others
involved in the commission of the offense [or was] responsible for orga-
nizing others for the purpose of carrying out a crime.”)(internal citation
omitted); see also United States v. Williams, 605 F.3d 556, 570 (8th Cir.
2010)(“[T]wo elements operate to enhance a defendant’s sentence . . .[,]
a leadership role over at least one other individual and numerosity of par-
ticipants.”); United States v. Longstreet, 567 F.3d 911, 925 (7th Cir.
2009)(to receive an enhancement under § 3B1.1, defendant must “have
had some real and direct influence . . . upon one other identified partici-
pant”). Control over the activities or assets of a criminal organization may
therefore support an upward departure from the guidelines, but may not
contribute to the calculation of the guideline sentence. See United States
v. Gort-DiDonato, 109 F.3d 318 (6th Cir. 1997).
UNITED STATES v. WHITNEY 2677
error. Id. at 716; United States v. Koenig, 952 F.2d 267, 274
(9th Cir. 1991).
[12] When imposing the enhancement, the court deter-
mined that Whitney was “complicit” in the fraud, and found
that a two-level increase was appropriate based on his partici-
pation in the offense. The court did not cite particular acts by
Whitney that it relied upon to justify the enhancement. It
stated, however, that Whitney was not the ring leader, adding
only that he was “the guy that facilitated the crime.” This
finding is insufficient to justify an enhancement under
U.S.S.G. § 3B1.1(c) because it fails to identify any supervi-
sory role over other individuals.
Regardless of the district court’s specific statements at sen-
tencing, the enhancement is proper nonetheless if there is evi-
dence in the record that would support the conclusion that
Whitney did, in fact, exercise the requisite control over others.
No such evidence is present here.7 Although the presentence
report concludes that Whitney “had an aggravating role in the
offense as an organizer, leader, manager, or supervisor,” the
record contains no factual basis that supports the conclusion
that Whitney did, in fact, exercise any control over others. As
this court held in Harper, 33 F.3d 1143, a sentencing court
may not conclude that an enhancement is appropriate where
the record lacks evidence that the defendant exercised the req-
uisite control — even if the presentence report states that it is.
To the contrary, there must be “reference [in the record] . . .
to any specific facts that indicate [the defendant] exercised
control over or organized others in committing this crime.” Id.
at 1151. Rather than support the conclusion that Whitney
7
Even if we were to disregard the fact that the prosecutor’s statement
regarding Whitney’s admissions that impliedly placed him in a leadership
role constituted a breach of the parties’ plea agreement we would not find
sufficient evidence. Although the prosecutor’s vague generalities might
prejudice the judge’s view of the appropriate sentence, they still, when
considered with all of the other evidence in the record, provide no legal
basis for the imposition of the two-level enhancement at issue here.
2678 UNITED STATES v. WHITNEY
exercised the necessary control, the facts included within the
presentence report contradict such a finding. The report
observed that it was undetermined whether there were any
inmates involved besides Whitney, Paucar and Alexander —
and it was never contended that Whitney exercised control
over either of his co-defendants. Although the report stated
that Whitney helped “manage the completion of . . . tax
forms,” the only individual alleged to have completed any tax
forms was Whitney himself.
[13] Although the information and tax forms Whitney pro-
vided to Paucar were undoubtedly integral to the completion
of the charged conspiracy, the centrality of Whitney’s role is
not relevant to the imposition of the role enhancement. The
probation officer’s conclusion that Whitney’s activities
amounted to a leadership or management role was unsup-
ported by the facts cited in the report and cannot provide a
factual basis for the court’s determination that Whitney was
a leader or organizer. The record is therefore insufficient to
support a determination that Whitney was an organizer or
leader warranting a two-level upward adjustment and the dis-
trict court’s finding to the contrary was clear error. Avlia, 95
F.3d 887.
CONCLUSION
[14] Each of the errors discussed above is alone sufficient
to require this court to vacate Whitney’s sentence and remand
for resentencing. As our circuit law requires, we must remand
this matter to a different judge, although in doing so we “in-
tend no criticism of the district judge by this action, and none
should be inferred.” Johnson, 187 F.3d at 1137 n.7; see also
Santobello, 404 U.S. at 263; Camper, 66 F.3d at 233 (“The
Supreme Court held in Santobello that if a remand for specific
performance of the plea bargain were ordered . . . resentenc-
ing should take place before a different judge.”).
Vacated and Remanded.