United States v. Wolff, Tristan

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 11, 1997 Decided October 21, 1997

No. 96-3145

United States of America,

Appellee

v.

Tristan Wolff, a/k/a Ashley Gabriel Caine,

a/k/a Stanley James Osman,

Appellant

Appeal from the United States District Court

for the District of Columbia

(No. 96cr00098-01)

William J. Garber, appointed by the court, argued the
cause and filed the brief for appellant.

Barbara E. Kittay, Assistant United States Attorney, ar-
gued the cause for appellee, with whom Eric H. Holder, Jr.,
United States Attorney at the time the brief was filed, John

R. Fisher, and Thomas C. Black, Assistant United States
Attorneys, were on the brief.

Before: Sentelle, Henderson and Randolph, Circuit
Judges.

Opinion for the court filed by Circuit Judge Sentelle.

Opinion concurring in part and dissenting in part filed by
Circuit Judge Randolph.

Sentelle, Circuit Judge: Appellant, seeking review of the
district court's judgment imposing a sentence of 84 months,
alleges errors in enhancement, and in the denial of a three-
level reduction for acceptance of responsibility. Appellant
also argues that he is entitled to resentencing because the
government breached its plea agreement with him. The
government concedes the breach, but differs with the defen-
dant as to its effect. Because we agree with the appellant
that he is entitled to resentencing based on the government's
breach of the plea agreement, we do not reach the other
allegations of error but vacate the district court's judgment
and remand for resentencing.

I. Background

An indictment of March 29, 1996, charged appellant Tristan
Wolff with three counts of bank robbery in violation of 18
U.S.C. s 2113(a). On May 2, 1996, he entered into a written
plea agreement with the government to plead guilty to two
counts of bank robbery, in return for which the prosecution
agreed, inter alia, that "the government will ... ask that
[Tristan Wolff] receive full credit for acceptance of responsi-
bility." On that date, he entered a plea of guilty in district
court. The district court accepted the plea and continued the
matter for sentencing. After the preparation of the Presen-
tence Investigation Report, the case returned to court for
sentencing on October 17, 1996. The court entered a sen-
tence of 84 months incarceration, followed by 3 years of
supervised release, reflecting an adjusted offense level of 28,
computed from: (1) a base offense level of 20 (U.S.S.G.

s 2B3.1); (2) 2 levels for the specific offense characteristic of
taking the property of a financial institution (U.S.S.G.
s 2B3.1(b)(1)); (3) 2 levels for "an express threat of death"
(U.S.S.G. s 2B3.1(b)(2)(F)); (4) 2 levels for the second count
of bank robbery (U.S.S.G. s 3Dl.4); and (5) 2 levels for
"obstruction of justice" (U.S.S.G. s 3C1.1). The defendant
requested a three-level decrease for "acceptance of responsi-
bility" (U.S.S.G. s 3E1.1), which the sentencing judge denied.

Contrary to the plea bargain, the government not only did
not join the defendant's request for full credit for acceptance
of responsibility, but also specifically requested that the de-
fendant be denied the three-point reduction for acceptance of
responsibility and be given the upward adjustment for ob-
struction of justice that the district court ultimately awarded.
Following sentencing, the defendant filed the present appeal,
arguing that the district court erred: in enhancing the sen-
tence for obstruction of justice without making sufficient
findings on an adequate record to support that enhancement;
in assessing an enhancement for threat of death; and in
denying the three-level decrease for acceptance of responsi-
bility. Anterior to his argument that the court erred in
denying him credit for acceptance of responsibility, appellant
argues that the government violated its plea agreement by
arguing for that denial. On appeal, the government admits
its breach of the plea agreement but argues that all other
findings of the district court--that is, as to the enhance-
ments--should be sustained and the case remanded solely for
consideration of the effect of the breach. Appellant contends
that the sentence should be vacated along with all antecedent
findings and conclusions, and the case remanded for resen-
tencing.

II. Analysis

On appeal, the United States, with commendable candor,
confesses its failure to comply with the provision of its plea
agreement with appellant to the effect that it would ask the
sentencing judge to award him "full credit for acceptance of
responsibility." The government's original willingness to join

in that petition was no doubt occasioned by defendant's own
commendable candor in admitting that he robbed the banks
in question.1 Unfortunately, as the presentence investigation
unfolded, the government realized that Tristan Wolff had not
evidenced similar candor as to much of anything else--for
example, as to whether he was in fact Tristan Wolff.

Among other difficulties on this score, the fingerprints of
Tristan Wolff matched those of one Lee James Anthony
Kincaid, who had an "extensive criminal record" in the United
Kingdom, with 9 criminal entries between 1976 and 1981. It
further appears that at other times, the individual appearing
before the court as Tristan Wolff wearing the fingerprints of
Lee James Anthony Kincaid had used the names of Stanley
James Osman and Ashley Gabriel Caine. He also supplied the
probation officer conducting the presentence investigation
with a radically different life history than he had supplied at
other times to other authorities--and none of these histories
found much support in public records. Apparently it was this
deceptiveness, particularly the concealment of prior criminal
history, that prompted the trial Assistant United States At-
torney to argue against credit for acceptance of responsibility.
Unfortunately, the United States made no attempt to set
aside the plea agreement and begin again, but simply breach-
ed the agreement, as the government now admits.

The parties agree that appellant is entitled to relief. As
the Supreme Court has long held, "when a plea rests in any
significant degree on a promise or agreement of the prosecu-
tor, so that it can be said to be part of the inducement or
consideration, such promise must be fulfilled." Santobello v.
New York, 404 U.S. 257, 262 (1971). This leaves only the
dispute as to what relief is appropriate. The government
contends that we should leave all findings and rulings of the

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1 The commendability of his candor may be tempered a bit by the
circumstances of his admission. It occurred immediately after he
ran from the bank and asked directions from a nearby patrolman.
The teller he had just robbed ran after him yelling that the bank
had been robbed, and Wolff fled with stolen bank notes falling from
his coat. Gov't App., tab C at 24.

district court intact save the denial of credit for acceptance of
responsibility and remand for further proceedings on that
single subject. We disagree.

The defendant bargained for a sentencing proceeding in
which the trial judge would consider the government's recom-
mendation for the downward adjustment in conjunction with
all other factors in the case, not a proceeding in which all
other factors are foreclosed against him before consideration
of the government's recommendation. It may well be, as the
government hypothesizes, that this factor would not change
the trial court's decision on any other subject, but that is
something we had best leave to the trial court. In Santobello,
the leading case on this subject, the Supreme Court noted
that it did not need to "reach the question whether the
sentencing judge would or would not have been influenced"
by the terms of the plea bargain had the government fulfilled
its obligation. Id. Rather, the high court determined that
the ultimate disposition of the case was best left "to the
discretion of the [trial] court, which is in a better position to
decide whether the circumstances of [the] case require ...
specific performance of the agreement" or withdrawal of the
plea. Id. at 263. The same is true here. Consistent with
Santobello we must vacate the sentence and remand the
matter for further proceedings in the trial court.

We must still consider one more question regarding the
breadth of the relief. Appellant assumes that we must direct
the reassignment of the case to a different judge upon
remand. He bases this position on language of the Supreme
Court in Santobello:

The ultimate relief to which petitioner is entitled we
leave to the discretion of the state court, which is in a
better position to decide whether the circumstances of
this case require only that there be specific performance
of the agreement on the plea, in which case petitioner
should be resentenced by a different judge, or whether, in
the view of the state court, the circumstances require

granting the relief sought by petitioner, i.e., the opportu-
nity to withdraw his plea of guilty.

Id. at 263 (emphasis added).

Appellant, like many others, assumes this to create a
general rule that when a plea agreement is breached, resen-
tencing must automatically be assigned to a different judge.
See, e.g., United States v. McCray, 849 F.2d 304, 306 (8th Cir.
1988) (per curiam) ("The Supreme Court [in Santobello]
instructs us that "when the government breaches a plea
agreement, the defendant is entitled to be resentenced by a
different judge."); United States v. Hayes, 946 F.2d 230, 236
(3rd Cir. 1991) ("If specific performance is elected, [defendant]
must be resentenced by a different judge as dictated by the
Supreme Court in Santobello."). Indeed, we have previously
expressed that same assumption. In United States v. Pol-
lard, 959 F.2d 1011 (D.C. Cir.), cert. denied, 506 U.S. 915
(1992), we stated:

Any breach of a promise that induced the guilty plea
ordinarily entitles the defendant on direct review either
to specific performance and resentencing before a differ-
ent judge or to withdrawal of the guilty plea, as the court
deems appropriate.

Id. at 1028 (citing Santobello).

However, that language in Pollard was plainly dicta. In
Pollard, a proceeding under 28 U.S.C. s 2255, we denied
relief altogether, so that any discussion of the available relief
obviously did not constitute a dispositive holding in that case.
Neither have we in any other decision ever passed on the
question of whether Santobello requires resentencing before a
different judge in every case, nor has the Supreme Court.
Therefore, unless Santobello constitutes such a binding prece-
dent, no precedent requires us to command such a reassign-
ment. We hold that Santobello does not. Rather than
expressing a holding, the language quoted above in its entire-
ty mandates nothing. It merely sets forth the two options--
specific performance or setting aside of the plea--available to
the district judge. It then observes without accompanying

reasoning that in the event of specific performance the peti-
tioner in that case "should be sentenced by a different judge."
That hardly amounts to the reasoned proclamation of a rule
of general application.

At least two other Circuits have already reached the con-
clusion that a remand for resentencing based upon the breach
of a plea agreement by the government does not require
judicial reassignment. The Seventh Circuit in United States
v. Bowler, 585 F.2d 851, 856 (7th Cir. 1978), another case
involving a breached plea agreement, concluded that "it is
[not] necessary to have the resentencing before a different
judge," without setting forth its reasoning for that conclusion.
The Ninth Circuit has noted that "[w]here the government
violates a plea agreement at sentencing, the usual remedy is a
remand for resentencing." United States v. Travis, 735 F.2d
1129, 1132 (9th Cir. 1984). But the Travis Court went on to
observe, "[r]emand to a different judge is not the usual
remedy, it is one reserved for 'unusual circumstances.' " Id.
For this latter proposition, the Ninth Circuit relied on its
earlier decision in United States v. Arnett, 628 F.2d 1162 (9th
Cir. 1979). In Arnett, the Ninth Circuit considering the same
question, that is whether remand upon plea agreement breach
need be to a different judge, concluded it did not.2

The Arnett court treated the remand the same as any other
remand "when error is found in district court proceedings."
Id. at 1165. We find that comparison apt. No one supposes
that remands for resentencing after misapplication of the
Guidelines, remands for rehearing after admission of improp-
erly admitted evidence, or any of the other remands that can
occur in the universe of criminal cases automatically require
reassignment of the case. Indeed, in United States v. Robin,

__________
2 The Ninth Circuit cases are not uniform on this subject. In
United States v. Camper, 66 F.3d 229, 232 (9th Cir. 1995), that court
recognized an "apparent conflict" between Travis and United States
v. Benchimol, 738 F.2d 1001, 1003 (9th Cir. 1984), which held, citing
Santobello, that a defendant with whom the government had
breached its plea agreement "is entitled to be resentenced before a
different judge."

553 F.2d 8 (2nd Cir. 1977) (en banc) (per curiam), a case
asserting allegations of error not involving breach of plea
agreement but relied upon by the Ninth Circuit in Arnett, the
en banc Second Circuit observed that such an unusual reme-
dy is reserved for "unusual circumstances." Id. at 10. We
are persuaded that the reasoning of the Ninth Circuit in
Arnett, borrowed from the Second Circuit's reasoning in
Robin, is sound and hold that Santobello does not require
remand upon a breached plea agreement to be reassigned to
a different judge.

Our conclusion that Santobello requires reassignment to a
different district judge only in the unusual case, does not of
course answer the question whether we should require it in
this case. However, the reasoning of the Second Circuit in
Robin assists us in discerning standards to apply.

As that court viewed the question, except in the obvious
and limited category of cases in which personal bias requires
recusal, see 28 U.S.C. s 144, the "principal factors" to be
considered by a court of appeals in determining whether to
direct reassignment to a different judge are:

(1) whether the original judge would reasonably be ex-
pected upon remand to have substantial difficulty in
putting out of his or her mind the previously-expressed
views or findings determined to be erroneous or based on
evidence that must be rejected,

(2) whether reassignment is advisable to preserve the
appearance of justice, and

(3) whether reassignment would entail waste and dupli-
cation out of proportion to any gain in preserving the
appearance of fairness.

Id.

We conclude that these factors are appropriate ones. As
applied to this case, they do not require reassignment to a
different judge. We are not remanding because of any error
or misconduct on the part of the original trial judge. Indeed,
the allegations of error by her, which we do not reach because
of our disposition, are directed to rather technical application

of the Guidelines and not to any "erroneous" factfinding, in a
pejorative sense. Cf. Robin, at 10 ("Where the judge sits as
the fact-finder, reassignment is the preferable course, since it
avoids any rub-off of earlier error."). In fact, we do not lay
the fault for this remand at her feet at all. Of course, she
had been made advertent to the existence of the plea agree-
ment at the time of the entry of the plea on May 2, 1996, but
at the sentencing hearing, 5 and 1/2 months and an unknown
number of other cases later, no one called the breach of the
agreement to her attention. Had the trial defense attorney--
who, we note, was not the able counsel who represented Wolff
before us--sought relief at that time, we have every reason to
believe that the judge would have acted upon that request.

We therefore conclude that, on the record before us, we
have no reason to believe that the sentencing judge would
have "substantial difficulty" in putting out of her mind any
previously expressed erroneous findings since she made no
findings that we have held erroneous and we certainly do not
conclude that she made any findings on evidence now reject-
ed. Further, we see no reason to conclude that reassignment
is "advisable to preserve the appearance of justice." On the
other hand, there is reason to believe that reassignment
would entail at least some waste and duplication, possibly out
of proportion to whatever molecular gain there might be in
preserving the appearance of fairness. We therefore con-
clude that none of the principal factors identified above
warrants reassignment by this court in this case.

We caution that we do not intend to bind the hands of the
trial judge. If she should conclude that reassignment is in
order, obviously she retains the discretion to act upon that
conclusion. We will not review the alleged errors set forth by
appellant with regard to enhancements as we have no reason
to do so at this time. We have already set aside the sentence.
While it may be that the trial court will reach the same
conclusions on remand, it may not. It may even be that
appellant will be sufficiently satisfied with the new sentence
to come before us no more. It may be that the plea agree-
ment will be voided and the plea set aside. In any event,

today's disposition is determined by the breached plea agree-
ment without regard to the other matters and we need not
decide those issues which will not affect the outcome.

III. Conclusion

For the reasons set forth above we conclude that we must
set aside appellant's sentence and remand for further pro-
ceedings consistent with this opinion. We leave to the dis-
trict court the question of reassignment and such other
matters not foreclosed above.

Randolph, Circuit Judge, concurring in part and dissent-
ing in part: I would send the case back for resentencing
before a different district judge.

The defendant did not come clean with the probation
officer, but that was of no moment under this strange plea
agreement. By its terms, the government's promise to speak
in favor of a downward adjustment for the defendant's accep-
tance of responsibility did not depend on the defendant's
telling the truth to the probation officer, or to the district
court. The government did not uphold its end of the bargain
and so my colleagues rightly conclude that the defendant
must have another sentencing in which the government ful-
fills its obligation. The defendant is entitled to specific
performance of the government's end of the plea bargain.
Santobello v. New York, 404 U.S. 257, 262 (1971). The only
serious question is who should do the resentencing, the
original district judge or a new one.

Like my colleagues, I cannot gather much guidance on the
remedial question from Santobello. The first prosecutor
promised Santobello not to recommend any particular sen-
tence; a substitute prosecutor then urged the state judge to
imprison Santobello for the maximum term. The judge or-
dered the maximum sentence in light of Santobello's long
criminal history and said that the prosecutor's recommenda-
tion played no role whatever in his sentencing judgment. See
404 U.S. at 259. If one took the judge at his word, sending
the case back to him for resentencing would have been
senseless.* And so the Supreme Court ordered any resen-
tencing of Santobello to be done by a different judge. I
suppose this avoided making the prosecutor's breach a clear
harmless error and preserved the possibility that Santobello

__________
* The Court did say that it "need not reach the question whether
the sentencing judge would or would not have been influenced had
he known all the details of the negotiations for the plea." 404 U.S.
at 262. This seems to me a red herring. So far as I can tell,
nothing in the plea agreement required either party to inform the
judge of "the details of the negotiations." See 404 U.S. at 258.

might receive some benefit from the prosecutor's promised
silence.

What carries the day for me is not the reasoning given for
the Santobello remedy--there was none--or the remedy it-
self, which may have been prompted by the state judge's
remarks, but the desirability of having a fixed rule in these
cases, one easy to understand and easy to administer. Send-
ing every defendant back to the original judge would, of
course, be such a rule. But no one has urged it because there
are some cases deserving of assignment to a new sentencing
judge, a point on which all of us agree. I therefore come to
the following position: in all cases in which the government
breaches a plea agreement by doing something to influence
the judge against the defendant in sentencing, the case should
be remanded to a different judge for resentencing. (I would
reserve an exception for breaches so harmless that we would
not vacate the sentence, see Federal Rule of Criminal Proce-
dure 52(a).)

The majority has a different approach. It wants to winnow
out those cases not warranting reassignment on remand.
This is to be done by applying another one of these multi-
pronged "tests" in which the court of appeals balances impon-
derables--in other words, by applying no real test at all. The
alternative I favor--always remanding to another judge--
may not be a perfect solution. The new sentencing judge will
probably learn of what the government said (but should not
have said) at the initial sentencing and may have as much
trouble keeping that information out of mind as would the
original sentencing judge. The status quo thus may be
impossible to restore fully. But at least we can make the
attempt without trying to apply some standardless "stan-
dard."