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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 9, 2003 Decided February 6, 2004
No. 01-3139
IN RE: SEALED CASE
Appeal from the United States District Court
for the District of Columbia
(No. 97cr00301–01)
Lisa B. Wright, Assistant Federal Public Defender, argued
the cause for appellant. With her on the briefs was A. J.
Kramer, Federal Public Defender.
Lisa H. Schertler, Assistant U.S. Attorney, argued the
cause for appellee. With her on the brief were Roscoe C.
Howard, Jr., U.S. Attorney, John R. Fisher, Roy W. McLeese
III and James H. Dinan, Assistant U.S. Attorneys.
Before: GINSBURG, Chief Judge, and SENTELLE, Circuit
Judge, and WILLIAMS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge SENTELLE.
SENTELLE, Circuit Judge: Appellant appeals from a judg-
ment of the District Court sentencing him to 121 months on
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
his bargained plea of guilty to possessing with intent to
distribute cocaine. On appeal, he contends that the govern-
ment breached his plea agreement by failing to protect him
and his family from harm while he cooperated in ongoing
investigations, and by failing to inform the Departure Guide-
line Committee (DGC) and the sentencing court of the extent
of his cooperation. Because we find no reversible error, we
affirm the judgment of the District Court.
I.
On July 24, 1997, a federal grand jury in the District of
Columbia charged appellant in a four-count indictment with
possession with intent to distribute fifty grams or more of
cocaine base (in violation of 21 U.S.C. §§ 841(a)(1) and
841(b)(1)(A)(iii)), possession of a firearm by a convicted felon
(in violation of 18 U.S.C. § 922(g)(1)), possession of ammuni-
tion by a convicted felon (same provision), and possession of a
firearm with an obliterated, removed, and altered serial num-
ber (in violation of 18 U.S.C. § 922(k)). On September 30,
1997, pursuant to a written plea agreement, appellant entered
a guilty plea to the first count of the indictment, charging
possession with intent to distribute. Among the terms of the
agreement, in addition to the obvious exchange of the plea of
guilty to one count in return for the dismissal of others,
appellant agreed to cooperate with the government. In re-
turn, the government agreed that if the departure committee
of the United States Attorneys’ Office determined that the
appellant had provided ‘‘substantial assistance,’’ it would file a
motion pursuant to 18 U.S.C. § 3553(e) and U.S.S.G. § 5K1.1
permitting the court to depart below the otherwise applicable
Guideline range and/or mandatory minimum sentence. The
government also agreed that it would ‘‘take any and all
necessary reasonable measures to protect [appellant’s] and
his family’s safety,’’ possibly ‘‘includ[ing] the obtaining of a
section 8 voucher to allow [appellant’s] family to [sic] other
public assistance housing.’’
Over the next four-year period, the District Court held a
series of status conferences in which the parties informed the
3
court of the progress of appellant’s cooperation. While some
of these reports were favorable, others displayed difficulties
of varying severity and revealed the government’s varying
levels of satisfaction with appellant’s cooperation. Finally, on
November 13, 2001, the government filed a motion advising
the court of the defendant’s failure to cooperate, declaring
that the appellant had ‘‘agreed to cooperate with the govern-
ment by providing information and participating in covert
operations’’ involving a known and notorious drug gang. The
government’s motion further stated that defendant had failed
‘‘to comply with the terms of his plea agreement to cooper-
ate,’’ and that he was ‘‘not entitled to a downward departure
from the Guidelines.’’ Following the filing of the motion, the
parties appeared for sentencing on November 15, 2001. The
prosecutor advised the court that consistent with the govern-
ment’s November 13 filing, the United States would not be
filing a motion for departure under U.S.S.G. § 5K1.1 and that
the court should proceed to sentencing in accordance with the
Guideline range.
Defendant and his counsel made no objection to the govern-
ment’s description of appellant’s failure to cooperate and did
not dispute the government’s determination that no 5K1.1
departure was warranted. The court sentenced appellant to
a term of confinement of 121 months, the bottom of the
Guideline range, followed by a five-year period of supervised
release.
Despite the silence of appellant on the subject in the
District Court, he contends on appeal that the United States
breached the plea agreement in two respects and that he is
therefore entitled to resentencing. He first contends that the
government failed in its obligation under the bargain to
protect him and his family. Second, he contends that the
government breached the plea agreement by failing to inform
the DGC and the District Court of cooperation he allegedly
provided to the government. Although he concedes that he
was unable to do everything that the government asked of
him, he contends that the committee would have approved a
substantial assistance downward departure if it had been
‘‘accurately informed’’ of his cooperation.
4
II.
Before determining the merits of appellant’s argument, we
must first determine the appropriate standard of review.
Appellant, who prays for a remand with an order for specific
performance of his plea bargain, contends that in an appeal
relying on the breach of a plea agreement, the Court of
Appeals should consider the questions de novo. Appellant’s
argument for this standard of review rests primarily on three
cases. United States v. Jones, 58 F.3d 688 (D.C. Cir.), cert.
denied, 516 U.S. 970 (1995); United States v. Wolff, 127 F.3d
84 (D.C. Cir. 1997), cert. denied, 524 U.S. 929 (1998); and
Santobello v. New York, 404 U.S. 257 (1971). Jones holds
that ‘‘the interpretation of a plea agreement’s terms is a pure
matter of law.’’ Id. at 691. In Wolff, appellant contends that
we remanded the case for resentencing and specific perform-
ance based on a breach of plea agreement by the government
where the claim of breach was raised for the first time on
appeal. In Santobello, the Supreme Court directed that
‘‘when 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
fulfilled.’’ Id. at 262. Each of these propositions is in itself
unassailable. However, taken together, they do not inexora-
bly lead to appellant’s conclusion that we should consider this
matter de novo and grant him the relief sought.
The Jones Court, in the quoted passage, was not consider-
ing the standard of review to apply to a claim of breached
plea agreement raised for the first time on appeal. Rather,
that Court was delineating the standard it would apply in
construing the terms of a plea agreement, the breach of
which had been asserted, argued, and considered at the
District Court level. 58 F.3d at 690. In Wolff, concededly,
we granted a remand for specific performance of a plea
bargain based on a breach not asserted in the District Court.
However, Wolff involved an extraordinary circumstance not
present in the case before us. In Wolff, the government,
exercising what we described as ‘‘commendable candor,’’ 127
F.3d at 86, confessed its breach of the plea agreement in the
trial court and joined in the petition for remand. The only
5
issue before us in Wolff was the breadth of the relief after
remand. Like Jones, that decision has nothing to do with the
standard of review applicable to a disputed breach of a plea
agreement not raised in the trial court.
Appellant offers Santobello for the proposition that he is
entitled to the relief prayed. He further argues that Santo-
bello establishes that ‘‘[c]ontractual breaches by the govern-
ment are not ‘errors’ subject to Rule 52’’ of the Federal Rules
of Criminal Procedure. True, Santobello does teach that the
sentencing judgment entered after the prosecution’s breach
of a plea agreement must be vacated on appeal and the case
remanded for further proceedings and new sentencing consis-
tent with the interest of justice. However, Santobello, like
Wolff, involved the prosecution’s concession of a breached
plea agreement. Further, Santobello, like Jones, was entered
on review of an objection raised in the trial court. In no way
does Santobello dictate the standard of review for a case like
the one before us. Here, a defendant accuses the prosecution
of breaching the plea agreement, for the first time on appeal,
and the prosecution denies the charge. In short, none of the
cases relied upon by appellant adopted a standard of de novo
review on the question before us, and neither do we.
III.
Having rejected the de novo review proposed by appellant,
we join the substantial majority of circuits holding that when
a defendant raises a claim of breached plea bargain for the
first time on appeal, the reviewing court should apply a plain
error standard of review consistent with Fed. R. Crim. P.
52(b). See United States v. Barnes, 278 F.3d 644, 646 (6th
Cir. 2002); United States v. Matchopatow, 259 F.3d 847, 851
(7th Cir. 2001); United States v. Saxena, 229 F.3d 1, 5 (1st
Cir. 2000); United States v. Maldonado, 215 F.3d 1046, 1051
(9th Cir.), cert. denied, 531 U.S. 1172 (2001); United States v.
Thayer, 204 F.3d 1352, 1356 (11th Cir. 2000); United States v.
Cohen, 60 F.3d 460, 462–63 (8th Cir. 1995); United States v.
Wilder, 15 F.3d 1292, 1301 (5th Cir. 1994); United States v.
Fant, 974 F.2d 559, 564–65 (4th Cir. 1992).
6
In holding that the plain error standard set forth in Rule
52(b) applies, we recognize that the Rules of Criminal Proce-
dure do not directly address this circumstance or mandate
the application of that standard. Rule 52(b) by its terms
states that ‘‘a plain error that affects substantial rights may
be considered even though it was not brought to the court’s
attention.’’ This rule, then, is an alternative to Rule 51
which, at the time of the district court’s ruling, permitted a
defendant to preserve his claim of error by ‘‘mak[ing] [it]
known to the court the action which [he] desires the court to
take or [his] objection to the action of the court and the
grounds therefor.’’ Fed. R. Crim. P. 51 (2001). Appellant
did not preserve his claim under Rule 51, however, because
the relevant time for objecting was at the time of sentencing.
See United States v. Williams, 350 F.3d 128, 128 (D.C. Cir.
2003). Rule 52 has no similar requirement for preserving a
claim of error, and plain error is therefore the correct stan-
dard of review.
In fact, some circuits have moved in the direction of the
application of the sort of de novo rule for which appellant
opts. See United States v. Peterson, 225 F.3d 1167, 1170
(10th Cir.), cert. denied, 531 U.S. 1121 (2001); United States
v. Lawlor, 168 F.3d 633, 636 (2d Cir. 1999); United States v.
Moscahlaidis, 868 F.2d 1357, 1360 (3d Cir. 1989). United
States v. Corsentino, 685 F.2d 48 (2d Cir. 1982), is cited for
the proposition that the Second Circuit follows the minority
rule. The Corsentino court did not clearly choose between
the standards. In fact, that court states, ‘‘[w]e do not doubt
that in some circumstances the impending violation of a plea
agreement may be so clearly anticipated that a defendant’s
failure to object to what is about to happen can fairly be
taken to be a waiver of compliance with the agreement.’’ 685
F.2d at 50. It was only the fact that ‘‘[t]he defendant had no
opportunity to object to the prosecutor’s submission of a
sentencing memorandum’’ that made the circuit decide in
favor of de novo review in that case. Id. So, like our own
decision in Wolff, Corsentino actually addresses a different
question than the one before us, although its language con-
cerning ‘‘waiver’’ is instructive. First, we note that in light of
7
the Supreme Court’s semantic distinction between the con-
cepts of ‘‘waiver’’ and ‘‘forfeiture’’ in United States v. Olano,
507 U.S. 725 (1993), issued subsequent to the Corsentino
decision, the proper terminology is ‘‘forfeiture’’ rather than
‘‘waiver.’’ ‘‘Forfeiture, as opposed to waiver, does not extin-
guish an ‘error’TTTT’’ As the Supreme Court reasoned in
Olano, a waiver extinguishes an error so that there is no
review, because the defendant has knowingly and personally
given up the waived right. In the case of a forfeiture, a legal
rule may have been violated, ‘‘and if the defendant did not
waive the rule, then there has been an ‘error’ within the
meaning of [the Federal Rules] despite the absence of a
timely objection.’’ Id. at 734. Thus, where there has not
been a knowing waiver completely extinguishing a right, but
silence on the part of the appealing party has prevented
examination by the trial court, the error is said to have been
‘‘forfeited’’ rather than ‘‘waived.’’ Id. With that semantic
amendment, we join the analysis of the Corsentino Court. It
appears to us that forfeiture is precisely what occurs when a
defendant has an opportunity to object to the breach of the
plea agreement and does not do so.
Therefore, as the First Circuit stated, ‘‘[w]hen a defendant
has knowledge of conduct ostensibly amounting to a breach of
a plea agreement, yet does not bring that breach to the
attention of the sentencing court, we review only for plain
error.’’ 229 F.3d at 5. See also United States v. Barnes, 278
F.3d at 646 (‘‘Defendant waived his right to appeal any
breach of the plea agreement, and a plain error analysis thus
guides this Court’s review.’’); United States v. Maldonado,
215 F.3d at 1051 (‘‘With few narrow exceptions, breach of plea
agreement issues not presented to the trial court cannot be
raised for the first time on appeal.’’); United States v. Thay-
er, 204 F.3d at 1356 (‘‘[Defendant] failed to object at trial;
therefore, she has waived the issue on appeal, unless the
deviation can overcome the plain error standard.’’).
The Eighth Circuit in Cohen, in discussing a claim of
breached agreement and concluding that a forfeiture of any
such objection occasioned review under the plain error stan-
dard, stated: ‘‘[defendant] could have taken several steps in
response to the prosecutor’s statement [allegedly breaching
8
the plea agreement].’’ 60 F.3d at 462. As that circuit further
explained, the defendant ‘‘could have raised an immediate
objection,’’ or ‘‘could have asked for a continuance for the
purpose of’’ examining the Assistant United States Attorney
who had made the bargain, or ‘‘could have restated the terms
of the agreement in open court’’ and alleged its breach. Id.
The Eighth Circuit held that having ‘‘elected to take none of
these actions, he can not now raise an eleventh-hour attack on
the validity of his plea.’’ Id. We find this logic unassailable,
and apply plain error review here.
The few cases in the minority offer no convincing reasoning
to the contrary. The Tenth Circuit decision in Peterson
relies entirely on precedent of circuit law, which traces back
to United States v. Shorteeth, 887 F.2d 253, 255 (10th Cir.
1989). Shorteeth simply adopted the Second and Third Cir-
cuit’s view without analysis, citing United States v. Moscah-
laidis, 868 F.2d 1357, 1360 (3d Cir. 1989), and Paradiso v.
United States, 689 F.2d 28, 30 (2d Cir. 1982). Unlike the
Peterson panel, we are not bound by the circuit law of the
Tenth Circuit.
As to the Third Circuit decision in Moscahlaidis, it does
not appear to us that that case actually adopts the de novo
review standard for which it is cited. As applicable here, the
reasoning of that case broke the review into two parts.1 The
first step was the review of the ‘‘facts of the case, i.e., what
are the terms of the agreement and the conduct of the
government.’’ 868 F.2d at 1360. The second step was
‘‘whether the conduct of the government violated the terms of
the plea agreement.’’ Id. As to the first question, the one
which is determinative in the present case, the Third Circuit
expressly held ‘‘[t]he facts of the case, if disputed, are deter-
mined by the district court and our review of those findings is
limited to a clearly erroneous standard.’’ Id. (citing United
States v. Carrillo, 709 F.2d 35 (9th Cir. 1983)). It was only as
to the distinct question of ‘‘whether the government’s conduct
violates the terms of the plea agreement’’ that the court held
1A third part discussing remedy is not here relevant. See 868
F.2d at 1360 (citing Santobello v. New York, 404 U.S. 257 (1971)).
9
the issue to be ‘‘a question of law,’’ for plenary review. Id.
As appellant’s silence in the case before us prevented the
District Court from finding the facts, were we to follow the
Third Circuit by its terms, we would still be unable to subject
the alleged error to de novo review, as we certainly could not
find plain error in facts which the District Court was never
called upon to find.
The Second Circuit decision in Paradiso, relied upon by the
Tenth Circuit in Shorteeth, is also founded on circuit prece-
dent with little or no further reasoning. The circuit prece-
dent upon which the Paradiso court relied was Corsentino,
which we have already noted, is distinguishable and not
persuasive on the facts before us.
In short, we join the majority of circuits that hold that a
defendant who has the opportunity and knowledge to object
to an alleged breach of plea agreement by the prosecution
cannot successfully assert it for the first time on appeal,
unless his objection can survive plain error review. This
standard is not only supported by well-reasoned cases in the
majority of circuits, but is totally consistent with the anti-
sandbagging philosophy of the Federal Rules as set out in
Fed. R. Crim. P. 51 and 52. As the Ninth Circuit observed in
United States v. Flores–Payon, 942 F.2d 556, 560 (9th Cir.
1991), the fact-specific nature of an allegation of breach of
plea agreement makes it ‘‘precisely the type of claim that a
district court is best situated to resolve.’’ Agreeing with that
holding, we will proceed to review the allegation of breached
plea agreement under the plain error standard.
IV.
We note that the standard of review may make less differ-
ence than warrants the emphasis put upon it by the parties,
and by this opinion thus far. While appellant’s forfeiture in
the trial court makes it impossible for us to answer with
certainty, there is little in the record to suggest that the
government breached its plea agreement under any standard
of review. Nonetheless, we will proceed with the application
of the plain error standard.
10
Under the plain error standard, before an appellate court
can act upon an error not raised at trial, ‘‘there must be (1)
‘error’ (2) that is ‘plain’ and (3) that ‘affects substantial
rights.’ ’’ Johnson v. United States, 520 U.S. 461, 467 (1997)
(citations and internal punctuation omitted). Even if all three
of these conditions are met, ‘‘an appellate court may TTT
exercise its discretion to notice a forfeited error TTT only if (4)
the error ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’ ’’ Id. (citations and inter-
nal punctuation omitted). On the record before us, we find
that the appellant has failed to establish the critical first and
second conditions of plain error review: he has not shown us
error, certainly not one that is plain.
The word ‘‘plain’’ as used by the Supreme Court in outlin-
ing the four-part test for plain error ‘‘is synonymous with
‘clear’ or, equivalently ‘obvious.’ ’’ Id. (citations and internal
punctuation omitted). The error which appellant asserts–that
is the breach of the two provisions of the plea agreement–is
anything but clear or obvious. Appellant’s best argument
that there is record support for the claimed breach of the
family protection provision is his own statement in the Dis-
trict Court that he could not satisfy the government’s cooper-
ation demands without endangering his family. Since the
record does not support either the objectivity of his fear, or
that some failure by the government caused it, we can hardly
hold that the record makes it clear or obvious that the
government breached that provision. As to appellant’s alter-
native claim that the government breached its promise to
provide the departure committee and the sentencing court
with accurate information as to the nature and extent of his
cooperation, the record is at best ambiguous. Particularly
given the considerable discretion vested in the prosecution
under U.S.S.G. § 5K1.1, we cannot conclude that an ambigu-
ous record supports the sort of plain, clear, or obvious error
necessary to set aside the judgment in this case.
Conclusion
For the reasons set forth above, we conclude that appellant
has established no error, let alone one cognizable under the
11
plain error standard. The judgment appealed from is there-
fore
Affirmed.