United States v. Connolly

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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