United States v. Darrius Jamar Gatlin , 518 F. App'x 676 ( 2013 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
___________________
No. 11-16135
___________________
D.C. Docket No. 2:10-cr-14069-JEM-3
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DARRIUS JAMAR GATLIN,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(May 1, 2013)
Before MARCUS, HILL, and SILER, * Circuit Judges.
SILER, Circuit Judge:
*
Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by
designation.
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Defendant Darius J. Gatlin pled guilty to conspiracy to possess with intent to
distribute cocaine and possession of a firearm in furtherance of a drug trafficking
crime. He appeals his sentence on the grounds that the government breached the
plea agreement. For the reasons that follow, we AFFIRM.
I.
In 2010, Gatlin and two co-defendants, James George and Jeff Holland,
conspired with an undercover ATF agent to rob a narcotic stash house. The
defendants and the agent, who posed as a narcotics courier, hatched a plan to rob
the stash house of fifteen kilograms of cocaine. For his role in the robbery, the
agent was to keep five kilograms of cocaine.
On the night of the planned robbery, the defendants met the agent at a park
in Tamarac, FL. From there, the agent drove them to an undercover warehouse to
make their final preparations and discuss the robbery plan one last time. The agent
was going to enter the stash house and leave with two kilograms of cocaine and the
defendants were supposed to come in behind him after he left and take the rest by
force. After discussing the plan, the agent left the warehouse and the defendants
were arrested by the police.
At some point after his arrest, Gatlin told investigators that when he, George,
and Holland met at the park on the night of the planned robbery, they decided that
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robbing the stash house was too risky and instead they were going to double cross
the agent and rob him of the two kilograms of cocaine that he was supposed to take
from the stash house. On this basis, in exchange for a guilty plea by Gatlin, the
government agreed to jointly recommend to the court, for the purposes of
sentencing, that the quantity of cocaine involved in the offense was at least 500
grams but less than two kilograms. However, as part of the plea agreement, Gatlin
signed a stipulation of facts that twice referenced fifteen kilograms of cocaine, but
failed to mention the defendants’ alleged last minute change of plan to instead rob
the agent of two kilograms.
The district court first questioned the factual basis for this recommendation
at the change of plea hearing for Gatlin and George. Fletcher Peacock, Gatlin’s
attorney, explained to the district court that the “actual agreement,” in the
conspiracy, not the plea agreement, was for an amount of cocaine between 500
grams and two kilograms. Assistant United States Attorney Russell Killinger
responded that he did not “know that [he could] accept that” proposition.
Ultimately the court made it clear that it would consider the recommendation in the
plea agreement, but that the defendants “[couldn’t] change facts” and that it was
the court’s responsibility to “decide[] what the facts are, not the government.”
George and Gatlin were sentenced on the same day, with George going first.
After listening to George’s objection to and argument against the quantity of
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cocaine found to be involved in the offense in the presentence investigation report
(“PSR”), which was fifteen kilograms, the court stated that it was “not going to go
for the two kilos,” and that it did not “care what the government recommend[ed].”
Nevertheless, the court then pressed Killinger to defend the government’s
recommendation. Killinger stated that paragraph 23 of the PSR was the “whole
reason” for recommending two kilograms of cocaine. Paragraph 23 of the PSR
states that “[i]n a later debriefing, Gatlin told agents that he, George and Holland,
had agreed among themselves that instead of robbing the stash house, they would
rob the [undercover agent] after he left the stash house with two kilograms of
cocaine.”
Killinger recounted the specifics of paragraph 23 to the court, stating that,
according to Gatlin, the defendants “changed their plan” when they got to the park
and were going to “just . . . rip off the undercover when he came out with his two
kilos.” Killinger finished his defense of the government’s recommendation by
stating that “there is [] somewhat of a factual basis” for two kilograms as the
quantity of cocaine, but charged that it was the defense’s burden to establish that
quantity. After hearing from George’s counsel again, the court rejected the
recommendation because it could not “accept as true something that [it did] not
believe is true.”
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After the court sentenced George, it immediately began the sentencing
hearing for Gatlin. Peacock informed the court that he had been present during
George’s sentencing hearing and that he wished to object to the quantity of cocaine
recommended in the PSR. Before hearing Peacock’s argument, the court
summarized for Gatlin’s benefit that it did “not choose to accept a recommendation
that the amount involved in this case was two kilograms,” that it had no doubt “that
the amount being discussed was in fact 15 kilograms,” and that “whether the
defendants had a subjective standard in their own minds that they were only going
to . . . steal two kilograms . . . [did]n’t matter.”
The court then allowed Peacock to make an argument on behalf of his client.
Prior to the court’s rejection of two kilograms as the quantity of cocaine, Killinger
spoke only once. He was asked by the court to clarify what the agent’s cut was
supposed to be and how much he was supposed to take from the stash house.
Killinger stated that “the agent’s cut of 15 was going to be five,” and that the
“understanding was [] that the undercover agent was going to go into the house and
that he was [going] to leave with two, and then [the defendants] were going to go
in and take the remainder.” In concluding his argument, Peacock responded to the
burden of proof charge that Killinger had made during George’s hearing by
asserting that “under the guideline system it is the Government’s burden to go
forward and to prove the amount when it’s objected to.”
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The court overruled Gatlin’s objection, but then asked the government
whether it had anything to add to the argument before it considered a motion for a
downward variance under 18 U.S.C. § 3553(e). Killinger stated that “I did enter
into this plea agreement, I abide by the – I’m not retreating from the nonbinding
joint recommendation . . . .” He further stated that the PSR “referenced [] 15
kilograms” “three or four times,” and that Gatlin had not objected to those
references. He concluded that “as far as any Government[] burden or the Court’s
basis for finding relevant conduct in this case, I think there’s more than a sufficient
basis to do so.”
The court sentenced both George and Gatlin using fifteen kilograms as the
quantity of cocaine involved in the offense for purposes of calculating their
guideline range. Gatlin was granted a downward variance under § 3553(e) and
sentenced to 132 months imprisonment for Count I, for a total sentence of 192
months imprisonment. Gatlin timely appealed.
II.
We review de novo the question of whether the government breached a plea
agreement. United States v. Copeland, 381 F.3d 1101, 1104 (11th Cir. 2004).
However, where a defendant fails to object to an alleged breach of a plea
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agreement before the district court, we review for plain error. United States v.
Romano, 314 F.3d 1279, 1281 (11th Cir. 2002).
The parties dispute the applicable standard of review. The government
argues that Gatlin failed to object in the district court to the government’s
performance of its obligations under the plea agreement. Gatlin argues that it
would have served no purpose for his counsel to formally object. He contends that
the policies behind the contemporaneous objection requirement are not implicated
here because the government would not have cured its breach. Alternatively,
Gatlin cites United States v. Todd, 486 F. App’x 88 (11th Cir. 2012) (unpublished),
for the proposition that although he never expressly objected to the government’s
performance, it was clear to the district court that he thought the government was
breaching the plea agreement.
The facts here resemble those in Romano, where the underlying issue was
the application of specific sentencing guideline enhancements. 314 F.3d at 1280-
81. The government had agreed not to oppose the defendant’s request that only
three specific enhancements be applied, which would have increased the
defendant’s offense level to 19. Id. at 1280. At sentencing, the probation officer
recommended in the PSR that two additional enhancements be applied to raise the
offense level to 23. Id. The government supported and argued for the application
of the additional enhancements. Id. at 1281. Although the defendant objected to
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the application of the enhancements, he never objected to the government’s breach
of the plea agreement. Id. at 1280. On appeal, we held that the defendant failed to
raise the government’s breach before the district court and was thus subject to plain
error review. Id. at 1281.
Here, like the defendant in Romano, Gatlin argued the underlying issue—the
quantity of cocaine involved in the offense conduct. However, at no time did
Gatlin object to the government’s performance of its obligation under the plea
agreement. Gatlin’s reliance on United States v. Ly, 646 F.3d 1307 (11th Cir.
2011), for the contention that the policies behind the contemporaneous objection
requirement are not implicated here is misplaced. In holding that plain error
review did not apply to Ly’s claim, we reasoned that plain error review would have
been absurd where Ly’s ignorance of the law “was so apparent during the court-
initiated colloquy that the district court was obligated to correct his
misunderstanding.” Id. at 1312 n.5. Here, it was not “so apparent” that Gatlin was
ignorant of the government’s requirement to meet its obligations under the plea
agreement or ignorant of what those obligations were that the court was obligated
to intervene.
Gatlin’s reliance on Todd is also misplaced. There, the defendant
specifically raised the issue of the government’s promise in the plea agreement in
response to a dispute with the government as to whether the defendant had met the
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requirements in order to receive a reduction for the acceptance of responsibility.
Todd, 486 F. App’x at 90-91. No such dispute was present here. When the
government asserted that it was not retreating from the joint recommendation, it
was doing so because the court had already overruled Gatlin’s objection to the
quantity of cocaine recommended in the PSR, not because Gatlin alleged a breach.
III.
Plain error exists where (1) there is error, (2) that is plain, (3) that affected
the defendant’s substantial rights, and (4) that “seriously affect[ed] the fairness,
integrity, or public reputation of the judicial proceedings.” Romano, 314 F.3d at
1281. An error is plain if it is “clear or obvious, rather than subject to reasonable
dispute.” Puckett v. United States, 556 U.S. 129, 135 (2009).
A. Clear and Obvious Error
The government breached the plea agreement here by undercutting its
promise at least four times. First, when Gatlin’s counsel explained to the court that
the “actual agreement,” in the conspiracy, not just the plea agreement, was for an
amount of cocaine between 500 grams and two kilograms, Killinger responded that
he did not “know that [he could] accept that” proposition. This was clearly a
“material reservation[] about the agreement.” United States v. Canada, 960 F.2d
263, 270 (1st Cir. 1992).
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Further, although the plea agreement did not explicitly require the
government to stipulate that the “actual agreement” in the conspiracy was for less
than two kilograms, it was “entirely reasonable for [Gatlin] to understand the
government’s promise” to include this recommendation. United States v. Taylor,
77 F.3d 368, 370 (11th Cir. 1996). Otherwise, the court would not have had a
factual basis for the joint recommendation.
Second, the government’s response to the court’s inquiry regarding the
agent’s role also undercut its promise to recommend a quantity of less than two
kilograms. Killinger concluded his response by stating that the defendants “were
going to go in and take the remainder.” While not directly contradicting the
government’s promise, Killinger’s failure to mention the defendants’ ulterior plan
to rob the agent of two kilograms as he left the stash house undercut the
government’s promise because it left the impression that the defendants had no
plan other than to rob all fifteen kilograms of cocaine.
Third, the government never affirmatively recommended that the court find
that the quantity of cocaine involved in the offense was less than two kilograms.
The closest the government came during Gatlin’s sentencing was when Killinger
admitted that he entered into the plea agreement, and that he was abiding by and
“not retreating from the nonbinding joint recommendation.”
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Lastly, Killinger’s response to Gatlin’s challenge regarding the burden of
proof for the objected-to quantity undercut the government’s promise because
Killinger highlighted that the court had “more than a sufficient basis” to determine
the quantity of cocaine, including setting it at fifteen kilograms, which Killinger
noted was referenced, and not objected to by Gatlin, “three or four times” in the
PSR. In fact, this statement actively advocated the court to find the quantity
involved to be fifteen kilograms, a quantity that is “inconsistent” and
“incompatible” with the agreed-upon recommendation. Taylor, 77 F.3d at 370-71.
The numerous statements by the government undercutting its promise make
the government’s breach “clear or obvious, rather than subject to reasonable
dispute.” Puckett, 556 U.S. at 135. Thus, Gatlin satisfies the first prong of plain
error review.
B. Substantial Rights
In the context of an alleged plea agreement breach, the question of whether
the defendant’s substantial rights were affected is not whether the defendant would
have entered into the plea, but rather, whether his sentence was affected by the
government’s breach. Id. at 142 n.4. This requires Gatlin to show that there is a
“reasonable probability” that his sentence would be different. United States v.
Rodriguez, 398 F.3d 1291, 1299 (11th Cir. 2005). “[W]here the effect of an error
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on the result in the district court is uncertain or indeterminate – where we would
have to speculate – the appellant has not met the burden of showing . . . prejudice;
he has not met his burden of showing that his substantial rights have been
affected.” Id. at 1301 (citing Jones v. United States, 527 U.S. 373, 394-95 (1999)).
Gatlin argues that the court indicated “some initial willingness” to consider
his argument at sentencing, but the government’s breach eliminated any chance
that the court would accept his position. However, the record clearly indicates
that, at the very least, the court was leaning toward overruling Gatlin’s objection
prior to his sentencing hearing.
At the defendants’ joint change of plea hearing, when Peacock tried to
explain to the court that the agreement in the conspiracy involved less than two
kilograms of cocaine, the court responded by asking “how in the world is it less
than two?” The court further explained that the defendants couldn’t “change the
facts” and that the court is “the one that decides what the facts are, not the
Government.” The court then informed the parties that it would consider the
recommendation.
At George’s sentencing, which occurred immediately before Gatlin’s, the
court found that the quantity of cocaine involved was fifteen kilograms and
declared that “[it didn’t] care what the Government recommend[ed],” and called
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Gatlin’s ulterior plan to rob the agent of two kilograms a “legal fiction.” The court
stated that it was “not crazy about Mr. Killinger having agreed to the fact that it
was two kilos,” because it did not believe that was true. At the opening of Gatlin’s
sentencing hearing, the court summarized George’s hearing for Gatlin’s benefit.
The court pronounced that it did “not choose to accept a recommendation that the
amount involved in this case was two kilograms,” that it had no doubt “that the
amount being discussed was in fact 15 kilograms,” and that “whether the
defendants had a subjective standard in their own minds that they were only going
to . . . steal two kilograms . . . [did]n’t matter.”
These comments show that the court was well aware of the facts of the case
and the joint recommendation. Although the question of whether a breach of the
plea agreement affected the court is normally irrelevant under de novo review, see
Santobello v. New York, 404 U.S. 257, 262-63 (1971), under plain error review, its
effect on the court is directly relevant to the question of whether the defendant’s
substantial rights have been affected. See Rodriguez, 398 F.3d at 1299-1301.
Here, without the government’s breach, there is not a “reasonable probability” that
Gatlin’s sentence would be different. At best, it seems uncertain, and that is not
enough. Thus, the government’s breach did not affect Gatlin’s substantial rights.
AFFIRMED.
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HILL, Circuit Judge, concurring:
Bound by our plain error standard of review, I concur.
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