NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-1779
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UNITED STATES OF AMERICA
v.
MARTIN SCOTT WOLFE,
Appellant
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On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-10-cr-00380-001 & 2-10-cr-00500-001)
District Judge: Honorable Stewart Dalzell
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Submitted Pursuant to Third Circuit LAR 34.1(a)
March 23, 2012
Before: RENDELL, FISHER and CHAGARES, Circuit Judges.
(Filed: April 5, 2012)
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OPINION OF THE COURT
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FISHER, Circuit Judge.
Martin Scott Wolfe (“Wolfe”) appeals from his conviction and sentence in the
U.S. District Court for the Eastern District of Pennsylvania. For the reasons stated below,
we will affirm.
I.
We write principally for the parties, who are familiar with the factual context and
legal history of this case. Therefore, we will set forth only those facts necessary to our
analysis.
In 2003, Wolfe was convicted in the U.S. District Court for the Southern District
of Florida for knowingly transporting an individual in interstate commerce with the intent
to engage in prostitution, in violation of 18 U.S.C. § 2421. Wolfe pleaded guilty, and
was sentenced to 100 months’ imprisonment, to be followed by three years of supervised
release. In August of 2009, Wolfe was released from prison and returned to his mother’s
home in Philadelphia to begin his term of supervised release. Because his 2003
conviction involved the solicitation of a minor to practice prostitution, Wolfe was
required to register as a sex offender in his state of residence pursuant to the Sex
Offender Registration and Notification Act, 42 U.S.C. § 16901 (“SORNA”). Wolfe
registered his status and local address (his mother’s residence) with the Pennsylvania
State Police. He was informed that he was required to notify the Pennsylvania State
Police within 48 hours of any change in residence, and that he was required to register in
any new state of residence within 48 hours.
After Wolfe missed two appointments for drug testing with the Probation Office,
his probation officer visited his mother’s Philadelphia residence and discovered that he
had left one week prior. On January 13, 2009, Wolfe’s probation officer filed a petition
to revoke Wolfe’s supervised release for failing to comply with random drug testing and
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failing to notify the Probation Office of his change in residence. A warrant was issued
for his arrest. Wolfe was arrested two months later in Egg Harbor Township, New
Jersey, for operating an unregistered vehicle. At that time, he was residing in Atlantic
City, New Jersey.
On June 10, 2010, a grand jury returned an indictment against Wolfe charging him
with one count of failing to register as a sex offender, as required by SORNA, in
violation of 18 U.S.C. § 2250. The then-pending revocation of Wolfe’s supervised
release was transferred to the Eastern District of Pennsylvania. On November 18, 2010,
Wolfe entered a plea of guilty for violating SORNA, pursuant to a plea agreement.
Under the agreement, Wolfe waived his right “to appeal or collaterally attack [his]
conviction, sentence or any other matter relating to [the] prosecution,” subject to four
limited exceptions. The plea agreement provided that the government could “[m]ake
whatever sentencing recommendation as to imprisonment [for the SORNA violation] . . .
which [it] deem[ed] appropriate.” The agreement further authorized the government to:
“Comment on the evidence and circumstances of the case; bring to the
Court’s attention all facts relevant to sentencing including evidence relating
to dismissed counts, if any, and to the character and any criminal conduct
of the defendant; address the Court regarding the nature and seriousness of
the offense; respond factually to questions raised by the Court; correct
factual inaccuracies in the presentence report or sentencing record; and
rebut any statement of facts made by or on behalf of the defendant at
sentencing.”
However, the government also committed to “agree that whatever sentence [was]
imposed [for Wolfe’s SORNA violation] is to run concurrent to any sentence that may be
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imposed . . . for a pending violation of [Wolfe’s] federal supervised release.” During the
plea colloquy, the District Court reviewed these provisions with Wolfe, who indicated
that he understood them. The District Court made clear that the plea agreement was only
binding as between the parties, and therefore did not bind the District Court.
At the sentencing hearing, the District Court first addressed Wolfe’s SORNA
violation. The Court heard extended argument from both the government and Wolfe
regarding the appropriate length of the sentence. The government strenuously advocated
for a 37-month sentence, at the top of the Guidelines range. In its presentation, the
government emphasized Wolfe’s numerous prior offenses, which included three sex
offenses, the severity of his prior offenses, the fact that he had knowingly violated
SORNA while on supervised release, and the certainty that he would reoffend. The
government did not otherwise mention the supervised release violation. After hearing
Wolfe’s argument and testimony, the District Court imposed a 36-month sentence.
The District Court then turned to the sanction for Wolfe’s violation of supervised
release, and inquired whether that sentence should be imposed consecutively or
concurrently to Wolfe’s SORNA sentence:
THE COURT: So what’s the Government’s view about the
consecutive/concurrent issue? Because I think there is an agreement on
this, isn’t there?
THE GOVERNMENT: There is, sir, and I’m at a loss to be able to – I’m at
a loss to be able to explain that. I was not the prosecutor initially on the
case. I was asked to come in for sentencing purposes, so I did not negotiate
that particular part of the plea agreement. I am told that it was –
THE COURT: Well, it was negotiated.
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THE GOVERNMENT: It was something that was negotiated in order to get
the agreement in this case.
THE COURT: Okay, but in terms of the authority of the Court, you would
agree with me that that’s a different issue from the issues that we just spent
an hour and a half plus –
THE GOVERNMENT: Absolutely.
THE COURT: – worrying about? Wouldn’t you agree?
THE GOVERNMENT: Yes, sir.
THE COURT: Okay. But, obviously, you’re bound by your agreement and
I’m not going to ask you to retreat from that.
After further discussion with Wolfe’s counsel, the Court revoked Wolfe’s supervised
release and imposed a 12-month sentence to be served consecutively to Wolfe’s sentence
for the SORNA violation. Wolfe filed a timely appeal.
II.
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291.
Wolfe appeals the District Court’s imposition of consecutive sentences on the
grounds that the government’s conduct at sentencing violated his plea agreement, and
that, consequently, he must be resentenced. In the absence of a contemporaneous
objection, we review the government’s adherence to its obligations under a plea
agreement for plain error. Puckett v. United States, 556 U.S. 129, 135 (2009). Under
plain error review, Wolfe must show that (1) there was an error which was (2) “clear or
obvious,” (3) “affected the outcome of the proceedings,” and (4) “seriously affected the
fairness, integrity or public reputation of judicial proceedings.” Id. (quotation marks and
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citations omitted). We review the validity of an appellate waiver de novo. United States
v. Khattak, 273 F.3d 557, 560 (3d Cir. 2001).
III.
We would normally decline to exercise jurisdiction over Wolfe’s appeal because it
is not permitted under his appellate waiver. See United States v. Gwinnett, 483 F.3d 200,
203 (3d Cir. 2007). The record reveals that Wolfe’s plea is valid: it was entered into
knowingly and voluntarily, and the sentencing judge fully complied with Rule 11 of the
Federal Rules of Criminal Procedure. See Khattak, 273 F.3d at 563. Moreover, none of
the four exceptions to Wolfe’s appellate waiver are implicated here,1 and Wolfe does not
argue that the result “would work a miscarriage of justice.” Gwinnett, 483 F.3d at 203.
Thus, the parties do not dispute that, if enforced, the waiver would not permit an appeal
of this within-Guidelines sentence.
Nevertheless, it is well-established that “[a] defendant’s appellate waiver is not
enforceable if the government breaches its own obligations under a plea agreement.”
United States v. Schwartz, 511 F.3d 403, 405 (3d Cir. 2008) (citation omitted).
Accordingly, Wolfe offers two arguments that the government breached its promise to
1
The exceptions to Wolfe’s appellate waiver are: (1) Wolfe may filed a direct
appeal from his sentence if the government appealed from the sentence; (2) Wolfe may
assert a claim that the “sentence on any count of conviction exceeds the statutory
maximum for that count”; (3) may could assert a claim that “the sentencing judge
erroneously departed upwards under the U.S. Sentencing Guidelines”; or (4) Wolfe may
assert a claim that the sentencing judge “imposed an unreasonable sentence above the
final Sentencing Guidelines range.
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“agree that whatever sentence is imposed [for Wolfe’s SORNA violation] is to run
concurrent to any sentence that may be imposed for a violation of [Wolfe’s] federal
supervised release.” First, he contends that the prosecutor used her sentencing argument
for Wolfe’s SORNA violation to advocate in favor of consecutive sentences. Second, he
argues that the prosecutor’s response to the District Court concerning the
recommendation for concurrent sentences effectively undermined the government’s
commitment.2 Wolfe’s challenges fail.
Our task is to “evaluate the [challenged] conduct and determine whether it violates
the government’s obligations under the plea agreement.” United States v. Larkin, 629
F.3d 177, 186 (3d Cir. 2010). We interpret the plea agreement according to “general
principles of contract law,” McKeever v. Warden SCI-Graterford, 486 F.3d 81, 95-96 (3d
Cir. 2007) (citation omitted), and, mindful of the government’s “tremendous bargaining
power,” we “strictly construe the text against [the government].” United States v. Baird,
218 F.3d 221, 229 (3d Cir. 2000). We do not review the allegedly violated provision in
isolation, but rather with an eye towards the agreement as a whole. See Larkin, 629 F.3d
at 189-91; Schwartz, 511 F.3d at 405-06. The ultimate decision of the District Court to
disregard the agreement is, of course, irrelevant to our inquiry, because a plea agreement
binds only the parties. United States v. Schweitzer, 454 F.3d 197, 204 (3d Cir. 2006).
2
Wolfe also asserts that he may appeal the sentence because there is no plea
agreement governing the revocation of his supervised release. However, he offers no
argument to revisit the sentence that is independent of the alleged breach.
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First, we reject Wolfe’s contention that the government used its sentencing
arguments in the SORNA portion of the hearing to persuade the District Court to impose
consecutive sentences. The entire premise of this argument rings hollow, because the
District Court treated the sentencing for the SORNA and supervised release violations as
distinct issues. The District Court and the government agreed that the decision to impose
consecutive or concurrent sentences was “a different issue from the issues that [the
parties] had just spend an hour and a half plus . . . worrying about.” Moreover, the
arguments offered by the government were expressly permitted by the plea provisions
allowing the government to comment on “all facts relevant to sentencing,” and therefore
fell “within the range of expectations reasonably understood by [Wolfe] when [he]
entered [his] plea of guilty.” Larkin, 629 F.3d at 186; see id. at 189-91 (finding
government’s briefing on sentencing enhancement permissibly “provided an assessment
of the law and relevant facts that would support application of the enhancement” pursuant
to plea provisions allowing response to court’s request for briefing, despite stipulation
that enhancement was inapplicable). Accordingly, we are not persuaded that the initial
SORNA sentencing discussion – which was entirely proper – can be understood as
violating the government’s obligations to agree to a concurrent sentence for Wolfe’s
violation of supervised release.
Second, the prosecutor’s response to the District Court’s inquiry regarding the
concurrent sentence recommendation was not inconsistent with her promise to “agree” to
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a concurrent sentence. Wolfe is correct that the government may breach a plea
agreement with statements that either contradict or implicitly undermine its obligations.
See United States v. Hodge, 412 F.3d 479, 486-87 (3d Cir. 2005) (finding prosecutor’s
repeated statements that defendant should not be released into community plainly
amounted to recommendation for a life sentence and contradicted obligations under plea
agreement to request sentence within Guidelines range). And viewed alone, the
prosecutor’s statement that she was “at a loss to be able to explain” the basis for the
agreement is admittedly ambiguous. However, we must construe the challenged
statements in context and “against the entire backdrop of the proceedings,” Larkin, 629
F.3d at 191, and fairly construed, the prosecutor was simply attempting to explain that
she was unfamiliar with that provision of the plea agreement. The response of the
District Court – which cut off the prosecutor’s explanation of the government’s
agreement – is informative in this regard. See United States v. Ahn, 231 F.3d 26, 38
(D.C. Cir. 2000) (explaining that a district court is in the best position to understand the
meaning of a party’s conduct and statements responding to the court’s requests). Here,
the District Court responded by expressly recognizing the prosecutor’s commitment to
agree to a concurrent sentence and stated that it would not ask the prosecutor to retreat
from that commitment. This strongly suggests that the prosecutor’s comment should not
be interpreted as a retreat from the plea agreement.
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Thus, viewed in context, we cannot say that the prosecutor’s truncated remarks
were a “thinly veiled attempt to . . . influence the District Court.” Larkin, 629 F.3d at
191. Nor did this brief utterance implicitly undermine the very position the government
had committed to adopt, as the repeated statements did in Hodge. See 412 F.3d at 486-
87. The prosecutor may not have spiritedly advocated for a concurrent sentence, but the
plea provisions did not require her to do so. She was obligated to agree, and we do not
understand her conduct to be inconsistent with that obligation.
Moreover, Wolfe’s argument attacks the prosecutor’s honest response to the
District Court’s questioning, which a prosecutor’s ethical obligations require of her. See
United States v. Allen, 434 F.3d 1166, 1175 (9th Cir. 2006) (“[A] plea agreement does
not bar the government from honestly answering the district court’s questions. To the
contrary, honest response of the government to direct judicial inquiry is a prosecutor’s
professional obligation that cannot be barred, eroded or impaired by a plea agreement.”
(marks and citation omitted)). We will not penalize the government for adhering to such
obligations. In sum, the prosecutor’s truncated remarks – though perhaps not as effective
as Wolfe might desire – do not amount to a breach of the plea agreement.
IV.
For the foregoing reasons, we will affirm the judgment of conviction and sentence.
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