UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
No. 94-2083
UNITED STATES OF AMERICA,
Appellee,
v.
WALTER F. CONNOLLY,
a/k/a "SNAKE",
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Circuit Judge,
Campbell, Senior Circuit Judge,
and Stahl, Circuit Judge.
Jean-Claude Sakellarios with whom David I. Bailinson and
Sakellarios & Associates were on brief for appellant.
Margaret D. McGaughey, Assistant United States Attorney, with
whom Jay P. McCloskey, United States Attorney, and Jonathan R.
Chapman, Assistant United States Attorney, were on brief for the
United States.
April 4, 1995
BOUDIN, Circuit Judge. On December 21, 1993, Walter F.
Connolly pleaded guilty to two counts of a four-count
indictment. The indictment related to the 1992 entry by
Connolly and others into a home in Cornish, Maine, where
Connolly and his confederates believed they would find a
cache of marijuana to steal. Based on a plea agreement,
Connolly pled guilty to one count of conspiring to possess
marijuana with intent to distribute, 21 U.S.C. 841, 846,
and one count of carrying a firearm during and in relation to
a drug trafficking crime, 18 U.S.C. 924(c).
The presentence report dated February 22, 1994, proposed
that the amount of drugs attributed to the conspiracy be set
at 145.1 kilograms (just under 320 pounds); the base offense
level is 26 for 100 to 400 kilograms of marijuana. U.S.S.G.
2D1.1(c)(7). The report recommended a four-level
enhancement because Connolly was a leader or organizer,
U.S.S.G. 3B1.1(a), and a three-level reduction for
acceptance of responsibility, U.S.S.G. 3E1.1. Connolly had
only one criminal history point, based on a Florida assault
conviction, but also 19 other charges or convictions not
counted because of age or other circumstances.
The government moved for an upward departure for
uncounted criminal history. U.S.S.G. 4A1.2. Connolly's
counsel countered the government's motion by saying that the
earlier prosecutor who negotiated the plea had promised not
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to move for an upward departure. Connolly filed various
objections to the presentence report, moved for a downward
departure based on diminished capacity, and sought as a
witness the homeowner whose house had been invaded. The
district court found that the homeowner's testimony was
irrelevant because no marijuana had been found and the issue
was what Connolly had believed would be found.
After a delay to determine what the earlier prosecutor
had said, the district court sentenced Connolly on October 3,
1994. On the issue of drug quantity, the government
presented testimony from an investigator who had interviewed
other cooperating defendants; according to the investigator's
reports of his interviews, the defendants had expected to
find at least eight 40-pound bags of marijuana, although
higher figures were also reported. Connolly testified and
denied expecting that any marijuana would be found; he said
that he had expected the drugs to be gone and that he had
participated only in the hope of finding money.
The government continued to press for an upward
departure based on uncounted criminal history, arguing that
no promise had been made by the earlier prosecutor not to
move for an upward departure. Defense counsel who had been
involved in the plea negotiations reported that the earlier
prosecutor had said, "you're lucky we're not asking for an
upward departure," and then repeated, when a protest was
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made, "we're not going to do that." Counsel also reported
that the earlier prosecutor had also made guideline
computations that showed no such departure.
The district court then found that the relevant quantity
of marijuana was 145.1 kilograms, reflecting the amount that
the conspirators had expected to steal; that the upward
adjustment of four levels for leadership, and a downward one
of three levels for acceptance of responsibility, were both
proper; and that a downward departure sought by Connolly for
substance abuse was not warranted. This resulted in an
adjusted offense level of 27 for count I.
As to criminal history, the court found that the
government had not promised to refrain from seeking an upward
departure. The court also said that it "would in any event
have contemplated departing upward . . . if the government
had not so requested." The court found that Connolly had an
extensive criminal history reflecting "a lifelong pattern of
criminality." The court also found that a 17-year-old
burglary conviction, although remote in time, should be
counted under U.S.S.G. 4A1.2 because it was similar in
nature to the crime of conviction. This added three points
to Connolly's criminal history, placing him in category III.
The resulting guideline range for count I was 87 to 108
months. The court imposed a sentence of 100 months,
deducting time already spent in pretrial custody. The
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statutory minimum sentence of 60 months, to be served
consecutively to the count I sentence, was imposed on count
II. 18 U.S.C. 924(c). Connolly has now appealed to this
court.
Connolly's first challenge is to the district court's
upward departure based on criminal history. The first of two
separate arguments is that the government's motion for an
upward departure was a breach of the plea agreement or at
least the earlier prosecutor's promise that no such departure
would be sought. We assume arguendo the accuracy of the
defense's description of what the prosecutor said; two
lawyers so testified and the government did not squarely deny
it. Still, it is difficult to regard that statement as a
part of the plea bargain because of the language of the plea
agreement itself.
The agreement explicitly sets forth the various
obligations of the parties, specifies that the government's
commitment is to drop two other counts, and says that
"Defendant understands that there are no further or other
promises or agreements, either express or implied, other than
those contained in this Agreement and that none will be made
except in writing and signed by all parties." Further,
neither Connolly nor his counsel referred to an oral promise
by the government not to move to depart when, at the Rule 11
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hearing, the district court inquired whether any other
promises had been made.
What we have, therefore, is a prosecutor's oral comment
that might or might not be taken as a promise. But, if taken
as a promise, it was not included in a later filed agreement
that purported to be a complete integration of all promises
made by the government. Reading the document in full, it is
hard to know what more a prosecutor could do to write an
agreement that negated promises other than those set forth in
the document. Further, the defense thereafter confirmed in
open court that no unwritten promises were part of the plea
bargain.
Absent special circumstances, a defendant--quite as much
as the government--is bound by a plea agreement that recites
that it is a complete statement of the parties' commitments.
We have said that there may be exceptions to this general
rule in unusual cases, Bemis v. United States, 30 F.3d 220,
222 (1st Cir. 1994), but Connolly has pointed to nothing
unusual in this case. The earlier oral representation is not
offered to explain but rather to contradict the later
writing. Nor is there any basis here for charging the
government with deliberate misconduct.
In some cases, earlier oral discussions with the
prosecutor may be perfectly legitimate evidence to interpret
or clarify later written statements. This appears to have
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been the case in In re Arnett, 804 F.2d 1200 (11th Cir.
1986), cited to us by Connolly. In Arnett, the prosecutor
told the defendant orally that the government had no interest
in forfeiting his farm. The resulting plea agreement
provided for the defendant to forfeit $3,000 found on him at
the time of his arrest. The Eleventh Circuit held that a
later effort by the government to forfeit the farm was a
breach of the bargain.
The court in Arnett reasoned that the specific $3,000
forfeiture provision in the agreement gave the defendant some
basis in the document for thinking that this was the only
forfeiture to be sought, at least when the document was taken
in the context of the earlier discussion. If the plea
agreement were read as the defendant claimed to read it--to
mean that forfeiture was limited to $3,000--then defense
counsel arguably had reason to think that no separate
reference to the farm was required in the document or in the
Rule 11 colloquy.
In this case, we do not see how any language in the
written agreement can be construed, or even reasonably
misconstrued, as a promise by the government not to move for
a departure. The agreement did not commit anyone as to
sentencing recommendations; indeed, it specifically provided
that each side was free to petition for an "appropriate"
sentence. The prosecutor's sample guideline calculation was
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not a part of the agreement, and such illustrative
calculations appear to be commonplace. In sum, it would not
be reasonable to read the agreement to establish, or the Rule
11 colloquy to preserve, a promise by the government not to
move for a departure.
It is worth adding that in this case, unlike Arnett, we
do not have an apparent threat of unfairness. While the
forfeiture in Arnett was ultimately in the control of the
prosecutor, the departure decision in this case lay with the
district court. The district judge said that he would have
considered an upward departure based on criminal history even
if the government had never raised the subject. The nature
of Connolly's record, yet to be recounted, amply explains
this sentiment. Further, the presentence report proposed
that the district court consider such a departure.
Under ordinary rules these facts might also suggest that
if the government did make and break an explicit promise,
that breach could still be deemed harmless. The government
urges this as an alternative ground for affirmance, but does
not try to square its position with Santobello v. New York,
404 U.S. 257 (1971), which appears to remain the law. See
United States v. Canada, 960 F.2d 263, 271 (1st Cir. 1992).
Compare Kingsley v. United States, 968 F.2d 109, 115 (1st
Cir. 1992). We leave this issue for another day and decide
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this case on the ground that the government did not break any
promise to which it was committed by the final agreement.
In a related argument Connolly says that the district
court erred on the merits in departing based on criminal
history. Connolly's record of criminal conduct, convictions
and pending charges was lengthy. Apart from the Florida
assault conviction that represented his first criminal
history point, Connolly had been convicted for car theft,
malicious damage, larceny, multiple assaults, weapons
offenses and various drug offenses, in addition to other less
serious charges. For various reasons--such as age--these
convictions did not automatically translate into criminal
history points. The guidelines provide that the district
court may depart upward wherever reliable information
indicates that "the criminal history category [in which the
defendant is initially placed] does not adequately reflect
the seriousness of the defendant's past criminal conduct or
the likelihood" of future crime. U.S.S.G. 4A1.3. Here,
the district court followed the guidelines' methodology for
departures by making an adjustment in the defendant's
criminal history category and then applying the guideline
range that corresponded to the new category. Id. The court
determined the new criminal history category by awarding
points for a prior armed burglary conviction that fell about
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two years beyond the 15-year cut-off period. Id.
4A1.2(e)(1).
In this court, Connolly objects to the departure on the
ground that the prior conviction was a single incident, long
in the past, that did not closely resemble the present crime.
But the district court did not make the adjustment solely on
account of the single prior conviction but because of a
substantial criminal career which, after a period of
reasonably good behavior, Connolly gave evidence of resuming.
The 17-year-old conviction, bearing some general resemblance
in type to the current offense, was used simply as a
benchmark to measure the departure.
The district court's judgment as to the need for, and
degree of, departure based on uncounted criminal history is
subject to substantial deference on judicial review. United
States v. Mottram, 34 F.3d 1065 (1st Cir. 1994). We have
already noted the defendant's record and the defendant's two
recent crimes--the recent Florida assault and the armed drug
offense in this case. It is unnecessary to embellish matters
by describing in more detail the very dangerous home invasion
in this case, which nearly resulted in several deaths, or
Connolly's prior motorcycle-gang affiliations and their role
in this case.
Connolly's remaining arguments relate to the district
court's findings as to the quantity of drugs and Connolly's
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leadership role. Connolly says that these findings rested on
unreliable hearsay, thus violating both the guidelines and
the Sixth Amendment. He also says that the evidence does not
justify the findings. Reliable hearsay can be used at
sentencing, United States v. Zuleta-Alvarez, 922 F.2d 33, 36
(1990), cert. denied, 500 U.S. 927 (1991), and whether
reliable evidence supported the findings here is tested on
appeal under the "clear error" standard. Id. at 36-37.
Since no drugs were present in the house, the quantity
attributable to Connolly depended on what he and his
confederates expected to find. United States v. Piper, 35
F.3d 611, 615 (1st Cir. 1994). The views of Connolly's co-
defendants were assuredly hearsay, being reported in the
presentence report and by an investigating officer who
testified. But the co-defendants were generally consistent
in fixing 320 pounds as about the least that Connolly and the
others expected to find. The district court was not obliged
to credit Connolly's own statement that he did not expect to
find any drugs at all. United States v. Brewster, 1 F.3d 51
(1st Cir. 1993).
As for "leadership," Connolly did not concoct the
offense but, at the behest of the original plotters, he
recruited four other men into the venture, claimed a large
share of the expected profits, and negotiated terms with the
original plotters. Other co-defendants pointed to Connolly
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as giving orders to others in the actual planning and
execution of the plan. Connolly could permissibly be found
to be a leader or organizer, U.S.S.G. 3B1.1(a). Again, the
district court was not required to accept Connolly's denials
or those of a close friend, who gave rather insubstantial
testimony.
Affirmed.
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