PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
No. 08-4000
MALCOLM DAWSON, a/k/a Jun, a/k/a
Mac,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Frank D. Whitney, District Judge.
(3:05-cr-00104-FDW-CH-11)
Argued: October 27, 2009
Decided: December 3, 2009
Before KING, Circuit Judge, HAMILTON, Senior Circuit
Judge, and Anthony J. TRENGA, United States District
Judge for the Eastern District of Virginia, sitting by
designation.
Vacated and remanded for resentencing by published opinion.
Senior Judge Hamilton wrote the opinion, in which Judge
King and Judge Trenga joined.
COUNSEL
ARGUED: Sandra Barrett, Asheville, North Carolina, for
Appellant. Amy Elizabeth Ray, OFFICE OF THE UNITED
2 UNITED STATES v. DAWSON
STATES ATTORNEY, Asheville, North Carolina, for Appel-
lee. ON BRIEF: Gretchen C. F. Shappert, United States
Attorney, Charlotte, North Carolina, for Appellee.
OPINION
HAMILTON, Senior Circuit Judge:
The issue presented in this appeal is whether the defendant,
Malcolm Dawson, is entitled to be resentenced based on his
claim that the government breached the terms of his plea
agreement by failing to recommend at sentencing a two-level
minor participant reduction in his offense level. For the rea-
sons stated below, we conclude that Dawson has met his bur-
den of establishing plain error. Accordingly, we vacate his
sentence and remand for resentencing.
I
On April 25, 2005, Dawson was charged in one count of a
six-count indictment returned by a federal grand jury in the
Western District of North Carolina. Count One of the indict-
ment alleged that twenty-five individuals, including Dawson,
engaged in a conspiracy to distribute fifty grams or more of
crack cocaine and five kilograms or more of powder cocaine,
21 U.S.C. §§ 841(a)(1) and 846.
On October 18, 2006, Dawson and the government entered
into a written plea agreement. Several terms of the plea agree-
ment are relevant to this appeal. First, the parties executed the
plea agreement pursuant to Rule 11(c)(1)(B) of the Federal
Rules of Criminal Procedure, which provides in relevant part
that a sentencing "recommendation or request does not bind
the court." Fed. R. Crim. P. 11(c)(1)(B). Second, the parties
stipulated that the amount of cocaine that was known to or
reasonably foreseeable by Dawson was at least two kilograms
UNITED STATES v. DAWSON 3
but less than 3.5 kilograms. Third, the government agreed to
recommend at sentencing a two-level minor participant reduc-
tion in Dawson’s offense level pursuant to U.S. Sentencing
Guidelines Manual (USSG) § 3B1.2(b).1 Fourth, the parties
agreed that "any reduction in offense level" ultimately was
"for the Court’s determination." (J.A. 39). Fifth, Dawson
waived the right "to contest the . . . sentence" except for
claims of "ineffective assistance of counsel," or "prosecutorial
misconduct," or on the ground that
one or more findings on guideline issues were incon-
sistent with the explicit stipulations contained in any
paragraph in the plea agreement . . . , or on the basis
of an unanticipated issue that arises during the sen-
tencing hearing and which the District Judge finds
and certifies to be of such an unusual nature as to
require review by the Fourth Circuit Court of
Appeals.
(J.A. 42). Finally, the plea agreement required that all modifi-
cations be in writing.
1
Section 3B1.2 of the Guidelines provides for a four-level reduction in
a defendant’s offense level where the district court finds that the defendant
was a "minimal participant" in the criminal activity, and a two-level reduc-
tion where the district court finds that the defendant was a "minor partici-
pant" in the criminal activity. USSG § 3B1.2. The commentary makes
clear that § 3B1.2 is intended to cover only "a defendant who plays a part
in committing the offense that makes him substantially less culpable than
the average participant." Id. § 3B1.2 cmt. n.3(A). In defining "minimal
participant," the commentary provides that the four-level reduction applies
to a defendant who is "plainly among the least culpable of those involved
in the conduct of a group" and that relevant to this determination is a
defendant’s "lack of knowledge or understanding of the scope and struc-
ture of the enterprise and the activities of others." Id. § 3B1.2 cmt. n.4.
The commentary also provides that a "minor participant" warranting a
two-level reduction in the offense level is a defendant "who is less culpa-
ble than most other participants, but whose role could not be described as
minimal." Id. § 3B1.2 cmt. n.5.
4 UNITED STATES v. DAWSON
On November 1, 2006, a Rule 11 hearing was conducted by
a United States Magistrate Judge. At the hearing, the magis-
trate judge summarized the elements of the offense to which
Dawson was pleading guilty and Dawson affirmed that he
was, in fact, guilty of the conspiracy offense charged in the
indictment. The magistrate judge explained the appeal waiver
and Dawson affirmed that he understood that, as part of his
plea agreement, he "waived [his] right to appeal [his] convic-
tion or sentence with some very narrow exceptions." (J.A.
56). At the conclusion of the hearing, the magistrate judge
found that Dawson’s guilty plea was "knowingly and volun-
tarily made" with an understanding of "the charges, potential
penalties and the consequences" of his plea. (J.A. 59).
On May 17, 2007, the Probation Officer submitted a Pre-
sentence Report (PSR) in preparation for Dawson’s sentenc-
ing hearing. In the Offense Conduct section of the PSR, the
Probation Officer summarized the activities of the conspiracy
to which Dawson had pled guilty, including the extent of his
participation in the conspiracy. According to the Probation
Officer, the drug conspiracy centered around Michael Brian
McCall, Amos Calvin Hall, Gabriel Romero, and Kelvin
Beaufort. McCall and Hall primarily were distributors to "run-
ners and/or customers" or other "major distributors and/or
suppliers" in the Charlotte, North Carolina area. (J.A. 98).
Romero and Beaufort were McCall and Hall’s main sources
for cocaine. From time-to-time, Dawson assisted Beaufort
who was disabled by driving him to transactions or delivering
cocaine for him, and the parties agree that Dawson was unre-
liable in providing these services. The Offense Conduct sec-
tion of the PSR concluded by indicating that the drug quantity
to which the parties stipulated, between two and 3.5 kilo-
grams of cocaine, was an accurate estimate of what was
known to or reasonably foreseeable by Dawson.
Based on the stipulated drug quantity, the Probation Officer
set Dawson’s base offense at 28. USSG § 2D1.1(c)(6). A
three-level reduction for acceptance of responsibility, id.
UNITED STATES v. DAWSON 5
§ 3E1.1, resulted in a total offense level of 25. The Probation
Officer surprisingly did not address the stipulation in the plea
agreement that required the government to recommend a two-
level minor participant reduction pursuant to USSG
§ 3B1.2(b), thus the Probation Officer expressed no opinion
on whether Dawson was entitled to such a reduction.2 Com-
bined with a criminal history category of III, Dawson’s
offense level of 25 resulted in a sentencing range of 70 to 87
months’ imprisonment.3 Neither the government nor Dawson
objected to the facts found in the PSR or the legal conclusions
drawn from those facts.
The district court conducted Dawson’s sentencing hearing
on December 11, 2007. During the hearing, Dawson affirmed
that he was, in fact, guilty of the offense to which he had pled
guilty and stipulated to the factual basis as set forth in the
PSR. Counsel for Dawson agreed that the advisory calcula-
tions set forth in the PSR were "appropriate." (J.A. 71). In
arguing for a lenient sentence, Dawson’s counsel stressed that
Dawson was not a "leader or organizer or a critical compo-
nent" of the conspiracy, Dawson’s marijuana use during the
conspiracy affected his judgment, no weapons were involved
in his offense, and that he was unreliable as a delivery person
for Beaufort. (J.A. 72). In response, rather than arguing that
Dawson should receive a minor participant reduction in his
offense level, the Assistant United States Attorney (AUSA)
for the government argued in direct contradiction to the stipu-
lation in the plea agreement. The AUSA argued that Dawson
was an "important," "critical" component of the conspiracy, as
2
The Probation Officer did note that the plea agreement required the
government to recommend a downward adjustment for acceptance of
responsibility and, as noted, the Probation Officer applied such an adjust-
ment.
3
Of note, the statutory minimum for Dawson’s offense is sixty months’
imprisonment under 21 U.S.C. § 841(b)(1)(B). Thus, with the minor par-
ticipant reduction, a total offense level of 23 would have yielded a sen-
tencing range of 60 to 71 months’ imprisonment.
6 UNITED STATES v. DAWSON
Beaufort needed Dawson to perform his cocaine distribution
activities. (J.A. 75, 76).
In sentencing Dawson to 70 months’ imprisonment (the
bottom of the sentencing range), the district court understand-
ably did not address the stipulation in the plea agreement
requiring the government to recommend the minor participant
reduction, as the issue was never raised by the parties or in
any way brought to the attention of the district court. The dis-
trict court noted that while Dawson had potential for rehabili-
tation, he was, as the government had "pointed out," a "key
player" in the conspiracy, "making it possible for Kelvin
Beaufort, a paraplegic, to be involved in cocaine and crack
trafficking." (J.A. 78). In imposing the sentence, the district
court considered both the advisory sentencing range and the
factors set forth in 18 U.S.C. § 3553(a). The district court also
stated that it was imposing a twelve-year term of supervised
release, to be served following Dawson’s release from prison,
because Dawson had "been involved in a serious offense" evi-
dencing a lack of respect for the law, and the district court had
the duty to deter Dawson from "going into drug trafficking
again." (J.A. 79).
Dawson noted a timely appeal.
II
Dawson seeks to be resentenced based on the government’s
failure to recommend the minor participant reduction at sen-
tencing as the government had contractually agreed to do in
the plea agreement.4 According to Dawson, he would not have
pled guilty without this inducement, and the breach caused
4
A defendant’s waiver of appellate rights cannot foreclose an argument
that the government breached its obligations under the plea agreement.
United States v. Cohen, 459 F.3d 490, 495 (4th Cir. 2006). Accordingly,
the government properly does not seek to enforce Dawson’s appeal waiver
as to this claim.
UNITED STATES v. DAWSON 7
him prejudice because his sentencing range would have been
60 to 71 months’ imprisonment instead of 70 to 87 months’
imprisonment.
When a claim of breach of a plea agreement has been pre-
served, we review the district court’s factual findings for
clear error and its "application of principles of contract inter-
pretation de novo." United States v. Bowe, 257 F.3d 336, 342
(4th Cir. 2001). However, because Dawson did not claim in
the district court that the government had breached the plea
agreement, our review is for plain error. Puckett v. United
States, 129 S. Ct. 1423, 1428 (2009).
Plain error requires the existence of (1) an error, (2) that is
plain, (3) that affects the defendant’s substantial rights, and
(4) that seriously affects the fairness, integrity, or public repu-
tation of judicial proceedings. Id. The defendant bears the
burden of satisfying each of the elements of the plain error
standard. United States v. Vonn, 535 U.S. 55, 59 (2002).
"[W]hen a plea rests in any significant degree on a promise
or agreement of the prosecutor, so that it can be said to be part
of the inducement or consideration, such promise must be ful-
filled." Santobello v. New York, 404 U.S. 257, 262 (1971). "It
is well-established that the interpretation of plea agreements
is rooted in contract law, and that each party should receive
the benefit of its bargain." United States v. Peglera, 33 F.3d
412, 413 (4th Cir. 1994) (citation and internal quotation
marks omitted). "A central tenet of contract law is that no
party is obligated to provide more than is specified in the
agreement itself." Id. "Accordingly, in enforcing plea agree-
ments, the government is held only to those promises that it
actually made," and "the government’s duty in carrying out its
obligations under a plea agreement is no greater than that of
fidelity to the agreement." Id. (citation and internal quotation
marks omitted).
Here, the government concedes that it breached the plea
agreement when the AUSA failed to recommend to the dis-
8 UNITED STATES v. DAWSON
trict court at sentencing that Dawson receive a two-level
minor participant reduction. Accordingly, Dawson has estab-
lished the first two prongs of the plain error standard. See
Santobello, 404 U.S. at 262 (noting that the government
breaches the plea agreement when a promise it made to
induce the plea goes unfulfilled).
A defendant’s substantial rights are affected if the error "af-
fected the outcome of the district court proceedings." Puckett,
129 S. Ct. at 1429 (citation and internal quotation marks omit-
ted). Where the affected rights relate to sentencing, the out-
come the defendant must show to have been affected is his
sentence. Id. at 1433 n.4. "The defendant whose plea agree-
ment has been broken by the Government will not always be
able to show prejudice, either because he obtained the benefits
contemplated by the deal anyway . . . or because he likely
would not have obtained those benefits in any event." Id. at
1432-33 (footnote omitted). When the record does not so
reflect, we are free to conclude that the defendant has shown
a "reasonable probability, based on the appellate record as a
whole, that but for the error he would have received a more
favorable sentence." United States v. Lovelace, 565 F.3d
1080, 1088 (8th Cir. 2009) (citation and internal quotation
marks omitted).
Obviously, Dawson did not obtain one of the benefits con-
templated by the plea agreement, as the AUSA did not recom-
mend to the district court that he receive the minor participant
reduction. Moreover, the record does not reflect that Dawson
"likely would not have obtained [the minor participant reduc-
tion] in any event." Puckett, 129 S. Ct. at 1433. Several rea-
sons lead us to this conclusion. First, it was at the
government’s strenuous urging that the district court found
that Dawson was a "key player" in the conspiracy. (J.A. 78).
Thus, it stands to reason that a contrary argument (setting
forth in detail the government’s reasons for supporting the
minor participant reduction) may have been able to influence
the district court’s decision.
UNITED STATES v. DAWSON 9
Second, unlike Puckett, nothing occurred after the plea
agreement was signed that undermined the government’s firm
and unequivocal belief that Dawson was entitled to the minor
participant reduction. Rather, after its extensive and thorough
pre-plea agreement investigation, the government determined
that Dawson was a minor participant, and the parties entered
into the plea agreement with the understanding that the minor
participant reduction was warranted, subject of course to the
district court’s discretion. Nothing occurred after the plea
agreement was signed that altered the government’s view of
Dawson’s role in the offense. Given these facts, we are trou-
bled that the government argued on appeal to this court that
Dawson was not entitled to the reduction (perhaps even from
the get-go), instead of placing before this court the circum-
stances it believed warranted the minor participant reduction
at the outset. The failure to explain this about-face certainly
brings into play the integrity of the plea bargaining process.
Third, the facts as set forth in the PSR seem to help rather
than hurt Dawson. The extensive drug conspiracy involved at
least twenty-five people, and Dawson only was used from
time-to-time by Beaufort as a driver and delivery person. The
parties agree that Dawson was unreliable in providing these
services. Dawson was substantially less culpable than McCall,
Hall, and Beaufort, and arguably, he was substantially less
culpable than McCall and Hall’s clients who were "major dis-
tributors and/or suppliers." (J.A. 98). The critical inquiry in
determining whether a defendant is entitled to an adjustment
for his role in the offense is "not just whether the defendant
has done fewer bad acts than his co-defendants, but whether
the defendant’s conduct is material or essential to committing
the offense." United States v. Pratt, 239 F.3d 640, 646 (4th
Cir. 2001) (citation and internal quotation marks omitted).
Here, even though the district court in the exercise of its dis-
cretion was not obligated to award the minor participant
reduction even if the government had recommended one, the
record simply does not reflect that it is likely Dawson would
not have received the minor participant reduction had the gov-
10 UNITED STATES v. DAWSON
ernment made good on its promise, because the record does
not reflect that Dawson provided material and/or essential
assistance, as Beaufort was quite capable of using others to
assist him in his distribution efforts. Put another way, Daw-
son, who essentially was no more than a part-time drug cou-
rier, has demonstrated a reasonable probability that the
outcome of his sentencing would have been different had the
government made the appropriate recommendation. Cf. Love-
lace, 565 F.3d at 1088 (finding no prejudice, post-Puckett,
where the record did not indicate that, but for the govern-
ment’s breach of the plea agreement, the district court would
not have adopted the PSR’s higher, recommended base
offense level); see also United States v. White, 875 F.2d 427,
434 (4th Cir. 1989) (noting that "whether a drug courier is
entitled to a downward adjustment depends on the particular
facts surrounding his involvement").
With regard to the fourth prong of the plain error standard,
the prong "is meant to be applied on a case-specific and fact-
intensive basis." Puckett, 129 S. Ct. at 1433. Clearly, when
the government breaches a plea agreement, "the integrity of
the system may be called into question, but there may well be
countervailing factors in particular cases." Id. In the plea
agreement in Puckett, the government agreed Puckett had
demonstrated an acceptance of responsibility. Id. at 1426.
After he entered into the plea agreement and while awaiting
sentencing, Puckett engaged in a scheme to defraud. Id. at
1427. In holding that the fourth prong of the plain error stan-
dard was not met on the defendant’s forfeited claim that the
government breached the plea agreement by arguing at sen-
tencing that the defendant was not entitled to an acceptance
of responsibility reduction, the Court observed that, because
the defendant "obviously did not cease his life of crime,
receipt of a sentencing reduction for acceptance of responsi-
bility would have been so ludicrous as itself to compromise
the public reputation of judicial proceedings." Id. at 1433.
Unlike Puckett, we see no countervailing factors in the
present case that would allow the government to renege on its
UNITED STATES v. DAWSON 11
promise to make a minor participant recommendation for
Dawson. The government argues that two such factors are
present. First, the government suggests that both counsel for
Dawson and the AUSA recognized that Dawson was not a
minor participant because of the "possibility on this record
that the Government and Defendant’s counsel had agreed that
the reduction was unlikely to be granted by the district court."
Appellee’s Supplemental Br. at 10. The factual support for
this argument is that neither counsel for Dawson nor the
AUSA sought the minor participant reduction at sentencing
and counsel for Dawson stated at sentencing that Dawson was
not a leader or organizer. The government suggests this so-
called side agreement (which would have violated the provi-
sion in the plea agreement that required all modifications be
in writing) and counsel for Dawson’s statement at sentencing
mean that the breach of the plea agreement did not affect the
fairness, integrity, or public reputation of judicial proceed-
ings.
The government’s argument misses the mark. It is rank
speculation to conclude that there existed between counsel for
Dawson and the AUSA an agreement that Dawson did not
qualify for the minor participant reduction. In fact, it is more
plausible to conclude that no such agreement existed given
the provision in the plea agreement that required all modifica-
tions to be in writing. Moreover, counsel for Dawson’s state-
ment that Dawson was not a leader or organizer does not
necessarily mean that Dawson’s counsel did not believe that
Dawson was not a minor participant, as by definition, a minor
participant is not a leader or organizer.
The second countervailing factor pressed by the govern-
ment is that the sentence imposed by the district court, 70
months’ imprisonment, nevertheless is within the sentencing
range that would have applied had Dawson received the
minor participant reduction. However, this fact does not pre-
vent us from exercising our discretion to notice the error. The
district court sentenced Dawson at the low-end of the sentenc-
12 UNITED STATES v. DAWSON
ing range even though the AUSA stressed that Dawson was
a critical component to the conspiracy. Had the AUSA made
the argument he was obligated to make, it is reasonably prob-
able that the district court would have imposed a sentence
below the sentence of 70 months. Cf. United States v. Price,
516 F.3d 285, 289 n.28 (5th Cir. 2008) (noting that the district
court’s imposition of the minimum term under the incorrect
range demonstrated at least a reasonable probability that the
district court would have imposed a lesser sentence if it had
properly applied the Guidelines).
III
We have long recognized that "a government that lives up
to its commitments is the essence of liberty under law, [and]
the harm generated by allowing the government to forego its
plea bargain obligations is one which cannot be tolerated."
Peglera, 33 F.3d at 414. Notwithstanding this recognition, per
Puckett, criminal defendants have an affirmative obligation to
raise appropriate objections in the district court, lest they be
subjected to the rigorous plain error standard on direct review.
Here, appropriate objections would have saved a lot of time
and judicial resources. However, under the unique circum-
stances of this case, we agree with Dawson that he has met
his burden of establishing plain error. Accordingly, we vacate
the sentence and remand for resentencing before a different
district judge. See United States v. McQueen, 108 F.3d 64, 66
(4th Cir. 1997) (directing remand for resentencing before a
different sentencing judge after breach of plea agreement).5
5
We also note the district court erred in imposing a period of supervised
release in excess of five years. For a first offender like Dawson,
§ 841(b)(1)(B) provides for a sentence of between five and forty years
imprisonment and "at least four years" of supervised release. 21 U.S.C.
§ 841(b)(1)(B). Because the maximum term of imprisonment exceeds
twenty-five years, but is less than life, Dawson’s offense is classified as
a Class B felony. 18 U.S.C. § 3559(a)(1), (2). The maximum period of
supervised release authorized for a Class B felony is five years. Id.
UNITED STATES v. DAWSON 13
VACATED AND REMANDED FOR RESENTENCING
§ 3583(b)(1); see also United States v. Good, 25 F.3d 218, 221 (4th Cir.
1994) ("Although there is no maximum period of supervised release
expressed in the statutory language of 21 U.S.C. § 841(b)(1)(B), . . . the
maximum period of supervised release for a first offender found guilty of
this Class B felony is five years.").