[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
Nos. 03-14313, 03-14314 August 23, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket Nos. 03-00111–CR-CG-001
and 03-00079-CR-1-CG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
WILLIAM COPELAND,
a.k.a. William Joseph Creed,
Defendant-Appellant.
___________
Appeals from the United States District Court
for the Southern District of Alabama
___________
(August 23, 2004)
Before DUBINA, CARNES and CUDAHY*, Circuit Judges.
CUDAHY, Circuit Judge:
*
Honorable Richard D. Cudahy, United States Circuit Judge for the Seventh Circuit,
sitting by designation.
The defendant, William Lee Copeland, was charged in a four-count
indictment with conspiracy to distribute “crack” cocaine (the drug charge).1 He
pleaded guilty to the drug charge in a plea agreement in which the government
agreed not to prosecute him for matters which he related to the government. The
plea agreement also contained Copeland’s waiver of the right to appeal his
sentence in the drug case. Copeland was subsequently charged in a one-count
indictment with carrying a firearm in connection with a drug trafficking crime, in
violation of 18 U.S.C. § 924(c) (the gun charge). Copeland claimed that this gun
charge was barred by the plea agreement for the drug charge, but the district court
ruled that the plea agreement had not been breached. The defendant now appeals.
I.
William Lee Copeland was a busy criminal. The facts underlying his three
convictions are undisputed.
On August 14, 2002, an officer of the Mobile Police Department was
looking for Copeland pursuant to an outstanding arrest warrant for domestic
violence. When he was located and patted down, the officer found a pistol. At the
time of his arrest, he had a 1989 felony conviction in Ohio for Trafficking in
1
Copeland was also charged as a felon in possession of a firearm, in violation of 18
U.S.C. § 922 (g)(1), but this charge is not relevant to the issue in this case.
2
Cocaine and Carrying a Concealed Weapon. In District Court Case No. 02-00160
(the felon-in-possession case), Copeland was charged with one count of being a
felon in illegal possession of a firearm in violation of 18 U.S.C. § 922(g)(1). He
pleaded guilty to this charge pursuant to a written plea agreement with the United
States. This conviction was consolidated with two other charges for sentencing
but is not at issue in this appeal.
On August 16, 2002, a confidential informant (CI) told the Drug
Enforcement Administration (DEA) that William Copeland distributed crack
cocaine and marijuana in Mobile, Alabama. Under DEA supervision, the CI
bought crack from Copeland on two occasions. In District Court Case 03-00079
(the drug case), Copeland was charged in four counts with conspiracy to possess
with intent to distribute more than 50 grams of cocaine base in violation of 21
U.S.C. § 846, and with possession with intent to distribute cocaine base in
violation of 21 U.S.C. § 841(a)(1). In one of two consolidated appeals, Appeal
No. 03-14314, Copeland is now seeking specific performance of his plea
agreement in the drug case.
The facts underlying District Court case 03-00111 (the gun charge),
involving carrying a firearm in connection with a drug trafficking offense in
violation of 18 U.S.C. § 924(c), are not directly related to the facts supporting the
3
drug charge. On January 4, 2003, Mobile police officers bought drugs from a
woman in a hotel room in Mobile. When the officers returned to the hotel room to
arrest the woman, they found Copeland there. He threw a plastic bag containing
seven rocks of crack to the floor. The officers searched Copeland and found a
plastic bag containing marijuana that was packaged for sale. They also found
Copeland in possession of the currency that had been used by the officers to pay
the woman for the drugs. Copeland was arrested and taken to jail. Upon arriving
at the jail, he disclosed that he was carrying a pistol. He was convicted of the gun
charge and now seeks to set aside that conviction in the other of the two
consolidated appeals, Appeal No. 03-14313.
On May 12, 2003, Copeland pleaded guilty to the conspiracy charge in the
drug case pursuant to a written plea agreement and conceded that he was
responsible for 136.7 grams of crack cocaine. Paragraph 16 of the plea agreement
in the drug case stated in pertinent part that Copeland
will not be tried on any other violations of federal criminal law in the
Southern District of Alabama for his involvement prior to the date of
this agreement (for matters he has related to the United States
pursuant to this agreement only). Further, except for the charge to
which the defendant enters his guilty plea, the defendant will not be
charged in federal court in the Southern District of Alabama with any
other criminal acts resulting from information provided by him to the
government pursuant to this agreement as long as all information he
provides is truthful and complete.
4
(Copeland’s Br. at 5-6.) The plea agreement also contained a waiver of
Copeland’s right to appeal his sentence in the drug case but reserved his right to
contest certain specified exceptions not relevant here. Copeland signed a
“proffer” agreement on the same day he signed the plea agreement, but despite his
counsel’s several attempts to set up a debriefing session, the government did not
return her voice mail messages and did not debrief Copeland before bringing the
gun charge.
On May 19, 2003, Copeland’s counsel filed a motion in the district court
requesting an anticipatory breach hearing, alleging that the government was
planning on charging Copeland with a violation of 18 U.S.C. § 924(c) in breach of
paragraph 16 of his plea agreement in the drug case. The district court conducted
a hearing on May 20, 2003, during which the assistant U.S. Attorney stated that it
was the intention of the United States at the time the plea agreement in the drug
case was entered to exclude the intended gun charge from the language of
paragraph 16. The district court found that the breach issue was not ripe and
postponed ruling on it until after the gun charge had been formally filed. The
district court also postponed Copeland’s plea hearing in the drug case until after
the gun charge was filed, so that the two cases could be consolidated for plea and
sentencing, which would allow Copeland to avoid qualifying as a career offender.
5
Immediately prior to entry of Copeland’s guilty pleas in the drug case and the gun
case, the district court denied the motion for anticipatory breach and found that the
United States had not violated the plea agreement in the drug case. Then
Copeland entered a blind plea of guilty to the gun charge at the same time as his
guilty plea in the drug case, reserving his right to appeal the district court’s ruling
on the breach issue. On August 20, 2003, Copeland was sentenced to a total of
200 months’ imprisonment in all three cases: 120 months in the felon-in-
possession case; 140 months in the drug case, to run concurrently; and 60 months
in the gun case, to run consecutively. A mandatory special assessment of $100 in
each case was also imposed.
Copeland now appeals the district court’s finding that the United States did
not breach his plea agreement in the drug case, arguing that there was a breach
when the United States charged him with a violation of 18 U.S.C. § 924(c) without
first giving him a chance to be debriefed pursuant to that plea agreement and to
admit to the criminal conduct underlying the gun charge. Copeland argues that the
district court interpreted the language of his plea agreement in the drafter’s favor
instead of in his favor as required by well-established law. He also argues that the
sentence-appeal waiver in his plea agreement does not bar his appeal here, because
he is alleging a breach of the plea agreement containing the waiver provision and
6
is not appealing any aspect of his sentence in the drug case. Copeland is seeking
specific performance of the plea agreement, which in his view would require
dismissal of the gun charge.
II.
As an appeal of a final judgment of the district court in a criminal case, we
have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
Whether a defendant effectively (knowingly and voluntarily) waived his
right to appeal his sentence is a question of law that we review de novo. United
States v. Benitez-Zapata, 131 F.3d 1444, 1446 (11th Cir. 1997). Similarly,
whether the government has breached a plea agreement when the defendant
preserved his objection in district court, as did Copeland, is reviewed de novo.
United States v. Mahique, 150 F.3d 1330, 1332 (11th Cir. 1998).
III.
The government argues at some length that Copeland “waived his right to
appeal anything connected with [the drug] case except for the three exceptions
listed in paragraph 22 of the waiver of appeal,” none of which apply.2 (Gov’t Br.
2
Paragraph 20 of the plea agreement:
The defendant acknowledges that he is aware that Title 18, United States Code,
Section 3742 affords a defendant the right to appeal his sentence. In exchange for
the recommendations made by the United States in this agreement, the defendant
knowingly waives the right to appeal any sentence imposed in the instant case,
7
at 18-19.) This contention is quite meritless in view of the controlling language of
paragraph 20 that “the defendant knowingly waives the right to appeal any
sentence imposed in the instant case [the drug case], except with regard to those
rights identified in paragraph 21 below.” (Copeland’s Br. at 6-7 (emphasis
added).) The waiver, therefore, applies only to the sentence imposed in the drug
case, not, as the government contends, to “anything connected with [the drug]
case”—a considerably more expansive category. (Gov’t. Br. at 18.) The
defendant has therefore not waived the right to appeal the matters presented to us,
and we shall address them on the merits.
IV.
except with regard to those rights identified in paragraph 21 below.
Paragraph 21:
With the limited exceptions noted below, the defendant also waives his right to
challenge any sentence so imposed, or the manner in which it was determined, in
any collateral attack, including but not limited to, a motion brought under Title 18,
United States Code, Section 2255.
Paragraph 22:
The defendant reserves the right to contest in any appeal or post-conviction
proceeding any of the following:
a. Any punishment imposed in excess of the statutory maximum.
b. Any punishment that constitutes an upward departure from the guideline range;
or
c. A claim of ineffective assistance of counsel.
(Copeland’s Br. at 6-7.)
8
Copeland contends that the government breached the plea agreement in the
drug case by bringing charges in the gun case under 18 U.S.C. § 924(c). When
guilty pleas rest “in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be a part of the inducement or consideration,
such promise must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262
(1971). Thus, in determining whether the government has breached a plea
agreement, we must first determine the scope of the government’s promises. The
district court’s factual findings on the scope of the agreement will be set aside
only if they are clearly erroneous. Raulerson v. United States, 901 F.2d 1009,
1012 (11th Cir. 1990).
In determining the meaning of any disputed terms in an agreement, the court
must apply an objective standard and “must decide whether the government’s
actions are inconsistent with what the defendant reasonably understood when he
entered his guilty plea.” In re Arnett, 804 F.2d 1200, 1202-03 (11th Cir. 1986)
(citations omitted). In interpreting a plea agreement, we do not accept a “hyper-
technical reading of the written agreement” or “a rigidly literal approach in the
construction of the language.” United States v. Jefferies, 908 F.2d 1520, 1523
(11th Cir. 1990). The “written agreement should be viewed against the
background of the negotiations and should not be interpreted to ‘directly
9
contradic[t] [an] oral understanding.’” Id. “Only where the language of the
agreement is ambiguous, or where government overreaching is alleged does the
court consider parol evidence . . . .” Raulerson, 901 F.2d at 1012 (citation
omitted). When a plea agreement is ambiguous, it “must be read against the
government.” Id.; see also United States v. Harvey, 791 F.2d 294, 300 (4th Cir.
1986) (“[B]oth constitutional and supervisory concerns require holding the
government to a greater degree of responsibility than the defendant (or possibly
than would be either of the parties to commercial contracts) for imprecisions or
ambiguities in plea agreements.”). The rationale for this approach to interpretation
is that a plea agreement must be construed in light of the fact that it constitutes a
waiver of ‘substantial constitutional rights’ requiring that the defendant be
adequately warned of the consequences of the plea.” Jefferies, 908 F.2d at 1523.
Thus, our examination requires a two-step process. First, is the language
ambiguous, or not? If it is, we will consider extrinsic evidence of the parties’
intent in arriving at an interpretation of the agreement’s language and will rely on
the above-mentioned standards of interpretation; otherwise, we are limited to the
unambiguous meaning of the language in the agreement. Second, given our
interpretation of the language, we must decide whether to enforce the agreement,
keeping in mind that “the validity of a bargained guilty plea depends finally on the
10
voluntariness and intelligence with which the defendant—and not his
counsel—enters the bargained plea.” United States v. Harvey, 791 F.2d 294, 301
(4th Cir. 1986).
Although the district court might have been clearer, both parties agree that it
found the language of the plea agreement ambiguous with respect to whether the
government intended that the potential gun charge not be barred. The court said
that the language “could certainly have been made clearer by simply saying
“except for a 924(c) charge which will be brought.” But the court went on to hold
that “I do think that the language as is written, although it’s not absolutely clear,
does not prohibit this new charge, and I so hold.”3 This holding was apparently
based on an interpretation of “pursuant to the plea agreement” as necessitating
debriefing prior to signing the plea agreement. Since as of May 12 when
Copeland signed the plea agreement in the drug case he had not given the
3
The district court clarified its ruling as follows:
Well, I think the record adequately reflects my ruling in that case. But if you need
a clarification, it’s for not just the fact that he hasn’t been debriefed specifically
pursuant to the plea agreement. But it’s also because he has made no statement
whatsoever, from my understanding, about this gun in connection with any
statements he may have made in connection with [the drug case]. In other words,
there’s no way that he could have previously related the gun situation to the
government in any statements that he may have made in [the drug case], whether
he was specifically debriefed concerning this plea agreement or not. My
understanding about that’s correct; right?
(Trans. May 22, 2003, at 22.)
11
government any information, the district court found that the plea agreement did
not bar the bringing of the gun charge. (Trans. May 22, 2003, at 7-8; see also id.
at 6 (“At the time the agreement was made, he had not related anything to the
United States.”); id. at 22 (“[T]here’s no way he could have previously related the
gun situation to the government in any statements that he may have made in [the
drug case], whether he was specifically debriefed or not.”) (emphasis added).)
This also provides an explanation of why the district court’s ruling was not
influenced by the fact that the government already knew about the information
underlying the gun charge,4 and why the district court did not address whether
Copeland was legally entitled to an opportunity to be debriefed about the conduct
relevant to the gun charge before it was brought. Similarly, it would have been
unnecessary under this interpretation of the language of the agreement to hold a
hearing to determine whether Copeland understood (as he claims) that he was so
entitled, or whether (as the government claims) all parties were aware that the gun
charge was in the works and that, since the government was already aware of it, a
4
The district court commented:
Well, the problem is you signed this agreement on May the 12th and there had
been no debriefing at that time. And apparently, from what I understand, that
there were discussions about this charge that was going to be filed and that in fact
has been filed now. And so that would not change my ruling.
(Trans. May 22, 2003 at 7-8 (emphasis added).)
12
debriefing wherein Copeland mentioned the conduct would not have protected
him against the charge.
First, we note that “pursuant to” does not mean “prior to,” and the phrase
“pursuant to” in paragraph 16 of the agreement is not modified by the earlier
language, “prior to the date of this agreement.” The district court’s apparent
interpretation of the plea agreement to hinge immunization of the gun charge on
Copeland’s provision of information prior to signing the agreement is not only
illogical, it is inaccurate. “Pursuant to” means “following upon, consequent and
conformable to; in accordance with.” Oxford English Dictionary (2d ed. 1989).
To take advantage of this provision, Copeland was not required to impart
information about the gun charge prior to signing the plea agreement in the drug
case. It thus becomes important to resolve whether Copeland was legally entitled
to be debriefed in accordance with his plea agreement before he was charged with
the gun charge.
In this respect, we conclude that the agreement suffers not from ambiguity
in the usual sense but from the omission of language to specifically address
Copeland’s situation. The agreement does not specifically mention a requirement
that Copeland be given an opportunity to be debriefed before the gun charge
would be brought. It also fails to mention anything about the timing or contents of
13
any debriefing. Moreover, it is not clear whether the information gained during a
debriefing has to be “new” information in order to allow a charge to be avoided.
Copeland argues that the language of the plea agreement entitles him to an
opportunity to be debriefed before other charges are brought, citing arguably
analogous decisions from other circuits. See United States v. Ringling, 988 F.2d
504, 505 (4th Cir. 1993) (holding that government was required to debrief
defendant prior to sentencing where plea agreement promised that the government
“will make known to the Court at the time of sentencing the full nature and
cooperation, including whether the Government considers the Defendant to have
substantially assisted authorities”); United States v. Laday, 56 F.3d 24, 26 (5th
Cir. 1995) (holding that language similar to plea agreement in Ringling similarly
obliged government to interview defendant, even if government believed that “any
assistance [defendant] might offer [was] insubstantial”). The government
implicitly argues, with respect to the right to a debriefing, that the parties intended
to contract around any legal requirement to provide an opportunity to debrief. The
government contends that, when the plea agreement was executed, it already knew
about the conduct underlying the gun charge, the charge was already in the works
and both sides were aware that the gun charge would be brought. As support for
its implicit argument, the government claims that debriefing would not have
14
helped Copeland because the information would not have been “new” to the
government, as is arguably required by the terms of the agreement. (Gov’t Br. at
23-24.)
There is nothing in the language of the agreement requiring that the
information provided by Copeland be “new,” and at first glance, the case law on
this point seems to support Copeland’s argument. In Laday, the defendant had no
relevant information to provide about other crimes committed by him or others. In
Ringling, the defendant was not debriefed prior to sentencing, so the government
was consequently unable to inform the sentencing court about the nature and
extent of the defendant’s cooperation. When the DEA agent assigned to
Ringling’s case followed up on leads implicating others provided by the
defendant’s post-sentencing letter, they turned out to be of no value. In both
cases, the government deemed it a waste of time to formally debrief the defendant
because there was no useful information to be obtained. And in both cases, the
courts held that the plea agreements promised an opportunity to be debriefed,
regardless whether the information would be helpful. In fact, the Fifth Circuit has
held that, if the government is already aware that the defendant has no useful
information to impart at the time the plea agreement is signed, the government
cannot avoid its obligations under the terms of the plea agreement on the grounds
15
that debriefing would be pointless. Laday, 56 F.3d at 26. A direct benefit to a
defendant is undeniably at stake in being debriefed and cooperating with the
government, when such cooperation could lead to a reduction in sentence (or,
possibly, immunization against charges for other crimes). The conduct of the
government might also be construed as supporting Copeland’s position, since the
government failed to return several telephone calls from defense counsel to set up
a debriefing session after the execution of the plea agreement in the drug case—if
the provision of information already known to the government would not bar the
gun charge, why did the government apparently avoid debriefing Copeland?
However, Laday and Ringling can be distinguished from the present
situation. In both Laday and Ringling, the government had promised to convey to
a sentencing judge the nature and extent of the defendant’s cooperation, so that he
might qualify for a sentencing reduction based on his cooperation. Without
debriefing the defendants, the government was held to have been unable to fulfill
that promise. Here, the government’s promise was essentially that it would
immunize Copeland with respect to any information about other crimes that might
implicate him. In both Laday and Ringling, as well as in the present case, the
government’s goal was presumably to obtain information assisting in the
prosecution of others. But a reduction in sentence in exchange for cooperation is
16
much more clearly intended as a boon to defendants than is a promise to immunize
defendants from charges based on their own proffers. Being immunized against
the provision of incriminating information unknown to the government merely
keeps matters in status quo. If there were no debriefing, the government would
presumably not have the information on which to base additional charges. But in
Laday and Ringling, the denial of a chance to demonstrate cooperation means that
the defendant would lose a promised opportunity for a benefit.
Although we are supposed to resolve imprecisions in the plea agreement
against the government, we are also supposed to take into account the backdrop to
the parties’ negotiations. And on this record, it is unclear whether Copeland’s
information had to be “new” in order to immunize him against the gun charge.
The government stated in Copeland’s anticipatory breach hearing that its intention
at the time the plea agreement in the drug case was entered into was that the gun
charge would be excluded from the language of paragraph 16. Presumably, if all
parties shared the government’s ostensible intention, a timely debriefing would
have had no impact with respect to the gun charge. But the government neglected
to include any language in the plea agreement to reflect its alleged intention, and
without additional information, we cannot simply fill the gap left by the
government with the language it should have included. In the end, the resolution
17
of this question comes down to whether Copeland reasonably understood at the
time he signed his plea agreement that he could be immunized against the gun
charge by a subsequent proffer of information, or whether the gun charge was
going to be brought regardless of any post-agreement opportunity for debriefing.5
V.
The district court erred in finding that the language of the plea agreement
required Copeland to provide information about the gun charge prior to signing
the plea agreement. On remand, the district court should, in light of this opinion,
determine whether Copeland reasonably understood the government’s stated
intention with respect to the gun charge, or whether he reasonably understood the
government to be promising him an opportunity to be debriefed and to thereby
immunize himself against the imminent gun charge.6 The district court may
conduct a hearing and consider evidence extrinsic to the written agreement, if
appropriate.
5
It seems logical that the purpose of immunization would be to facilitate a defendant’s
disclosure of misdeeds, either his own or those of others, and that this purpose would not be
furthered by immunizing previously known infractions. But this does not necessarily establish
Copeland’s reasonable understanding of the situation.
6
Cf. Harvey, 791 F.2d at 303 (finding that where disputed provision of plea agreement
was ambiguous and evidence showed “honest conflict of understandings,” agreement must be
interpreted to mean what defendant reasonably thought it did).
18
The judgment is VACATED and REMANDED for further proceedings in
accordance with this opinion.
19