[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
____________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
December 20, 2002
No. 00-11505 THOMAS K. KAHN
____________________________ CLERK
D. C. Docket No. 99-00208-CR-ORL-22-B
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ANTHONY GRAZIANO ROMANO,
Defendant-Appellant.
____________________________
Appeal from the United States District Court
for the Middle District of Florida
____________________________
(December 20, 2002)
Before TJOFLAT, RONEY and FAY, Circuit Judges.
TJOFLAT, Circuit Judge:
On October 19, 1999, a Middle District of Florida grand jury returned a two-
count indictment against appellant, charging him, in Count One, with possession of
a Ruger Mini-14 .223 caliber semi-automatic rifle in September 1998,1 after having
been convicted of a felony, in violation of 18 U.S.C. § 922(g)(1), and, in Count
Two, with possession of a destructive device on May 11, 1998, that had not been
registered to appellant in the National Firearms Registration and Transfer Records,
in violation of 26 U.S.C. §§ 5841, 5845(a)(8), (f), 5861(d), and 5871.
On December 16, 1999, pursuant to a plea agreement, appellant pled guilty
to the Count One offense, and agreed to pay $400 in restitution to Diane
Setordepour. In the agreement, the Government promised not to oppose at
sentencing appellant’s requests that: (1) the court set the base offense level at level
14, pursuant to United States Sentencing Commission, Guidelines Manual, §
2K2.1(a)(6) (Nov. 1, 1998) (possession of a firearm by a “prohibited person”); (2)
that the court adjust the base offense level to level 19 pursuant to U.S.S.G. §§
2K2.1(b)(1)(A)(offense involving 3-4 firearms), 2K2.1(b)(4) (offense involving a
stolen firearm), and 3B1.4 (using a minor to commit a crime); and (3) that the court
1
Such possession began on September 26, 1998 and ended on October 4,
1998, when appellant voluntarily surrendered the semi-automatic rifle firearm
(along with two other firearms) to deputies of the Orange County, Florida sheriff’s
office.
2
adjust level 19 downward for acceptance of responsibility pursuant to U.S.S.G. §
3E1.1, provided that subsequent adverse information did not render such
adjustment “unwarranted.”
In the Presentence Investigation Report (PSI), the probation officer assigned
to the case fixed the base offense level of the Count One offense at 14 and adjusted
it upward to level 19, all in conformance with the plea agreement. The PSI,
however, made two other adjustments – each providing a two-level increase of the
base offense level – which the parties had not contemplated, because they related
to the Count Two offense, which would be dismissed at sentencing. The probation
officer made these adjustments pursuant to U.S.S.G. § 2K2.1(b)(3), because the
“offense” involved a destructive device, and U.S.S.G. § 3C1.1, because appellant
had obstructed justice. Since the probation officer gave appellant no credit for
acceptance of responsibility, the PSI set the adjusted offense level at level 23.
Coupled with a criminal history score of V, the Guidelines prescribed a prison
sentence for a term of somewhere between 84 to 105 months.
Appellant interposed several objections to the PSI, among them that the
adjusted offense level should not have included the two-level increases provided
by sections 2K2.1(b)(3) and 3C1.1, since those increases were based on conduct
involved in the Count Two offense, which was to be dismissed. The probation
3
officer (who prepared the PSI) stated in the Addendum to the PSI that, due to the
constraints of time, he had been unable to hold a “position of parties meeting” (for
the purpose of discussing appellant’s objections). Because he had been unable to
hold the meeting, the probation officer, in the Addendum, adhered to the PSI as
written, noting that the Government “agreed” with his use of sections 2K2.1(b)(3)
and 3C1.1 to enhance the base offense level.
At the sentencing hearing, appellant renewed his objection to the sections
2K2.1(b)(3) and 3C1.1 enhancements, arguing that they related solely to the Count
Two offense and, therefore, were irrelevant. The prosecutor acknowledged that, in
negotiating the plea agreement, the parties had not contemplated that appellant’s
base offense level would be enhanced for conduct that related not to Count One,
but to Count Two, which was not before the court. The prosecutor nonetheless
urged the court to apply the two Guidelines enhancements, and the court did so. In
addition, the prosecutor urged the court to depart upwardly from the Guildelines
sentence range (recommended in the PSI) on the ground that “a criminal history
category of five does not adequately represent the defendant’s prior criminal
conduct . . . we are suggesting . . . that there is a basis to move up to the next level
on a guided departure to a criminal history category of six.” After saying this, the
prosecutor proceeded to argue at length (in five pages of the sentencing transcript)
4
why the court should depart. The court rejected the prosecutor’s request, adopted
the factual recitations of the PSI and the Guidelines sentence range it prescribed,
and, after affording appellant his right of allocution, sentenced him to a prison term
of 105 months and dismissed Count Two of the indictment. Six days after the
court imposed sentence, the prosecutor moved the court to order appellant to make
the restitution called for in the plea agreement. Twenty-three days later, the court
entered the requested restitution order.
In this appeal, appellant contends that the Government breached the plea
agreement by urging the court to consider information wholly unrelated to the
Count One offense and, based on such information, to enhance the Count One base
offense level by a total of four levels pursuant to sections 2K2.1(b)(3) and 3C1.1 of
the Guidelines. In response, the Government notes that appellant failed to raise
this issue before the district court. The Government is right; hence, we review
appellant’s contention for plain error. We note plain error if (1) error occurred, (2)
the error is plain, (3) affects the defendant’s substantial rights, and (4) seriously
affects the fairness, integrity, or public reputation of the judicial proceedings.
United States v. Candelario, 240 F.3d 1300, 1308-09 (11th Cir.), cert. denied, 533
U.S. 922, 121 S.Ct. 2535, 150 L. Ed. 2d 705 (2001).
The Government properly concedes that appellant was denied the entire
5
benefit of his plea agreement because it breached the agreement when the
prosecutor strongly endorsed the probations officer’s recommendation (in the PSI)
that the court enhance appellant’s base offense level under sections 2K2.1(b)(3)
and 3C1.1 of the Guidelines. The breach bore fruit, in the form of error, in that the
two sections related to conduct wholly unrelated to the offense to which appellant
had plead guilty, possession of a firearm by a convicted felon. The prosecutor
knew that the application of those sections would constitute error. What’s more,
he knew that by urging the court to apply them, he – that is, the Government – was
breaching the plea agreement then and there. And, he must have known that
because he was an officer of the court, who regularly appeared before the court as
an attorney for the United States, the court might be inclined to accept his
representations as reliable, as constituting a correct statement of the law, and act
accordingly – which, indeed, is exactly what the court did.2
2
The prosecutor’s final act – in his effort to obtain a sentence far beyond
what the parties contemplated when they executed the plea agreement – was to
urge the court to depart from the Guidelines sentence range, by increasing
appellant’s criminal history category from V to VI. United States v. Burns, 501
U.S. 129, 139, 111 S.Ct. 2182, 2187, 115 L.Ed.2d 123 (1991), teaches that the
defendant must be given “reasonable notice” that the court is contemplating an
upward departure from the Guidelines sentence range. In United States v.
Hunerlach, 258 F.3d 1282, 1287 (11th Cir. 2001), we explained Burns as follows:
“This notice must specifically identify the ground on which the
district court is contemplating an upward departure.” [Burns, 501
6
Because the error was “plain,” we must ask whether it affected appellant’s
substantial rights. The sentence range the Guidelines prescribes for an offense
level of 23 (the level the court used) and a criminal history category of V is 84 to
105 months. The sentence range prescribed by an offense level of 19 – the level
yielded by omitting the section 2K2.1(b)(3) and 3C1.1 enhancements – is 57 to 71
months. We have no difficulty in concluding that the use of the higher sentence
range affected appellant’s substantial rights. Finally, we ask whether the plain
error seriously affected the fairness, integrity, or public reputation of the judicial
proceedings. More specifically, the question is whether the prosecutor’s conduct
produced such affect. We think it obvious that it did.
We therefore vacate the district court’s judgment, and remand the case for a
U.S.] at 138-39, 111 S.Ct. at 2182. This Court has held that Burns
requires that the notice “must affirmatively indicate that an upward
departure is appropriate based on a particular ground” and that the
defendant must be provided with notice “setting forth the potential
ground (or grounds) for the upward departure within a ‘reasonable’
amount of time prior to the sentencing hearing.” United States v.
Paslay, 971 F.2d 667, 673-74 n.11 (11th Cir. 1992).
In this case, the court had not provided appellant with notice that it was
considering a departure. Thus, had the court bowed to the prosecutor’s urging and
departed from the prescribed Guidelines sentence range, the court would have
committed error that was plain. As noted above, though, the court declined the
prosecutor’s invitation.
7
new sentencing hearing.3
VACATED and REMANDED, for further proceedings.
3
Appellant challenges the court’s untimely entry of the restitution order.
Given our disposition, we need not deal with the restitution aspect of the case. The
court, on remand, should consider the restitution issue anew. Appellant also
contends that he received ineffective assistance at sentencing. His claim is moot;
moreover, such claims should be brought in a collateral proceeding under 28
U.S.C. § 2255.
8