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USCA1 Opinion
May 6, 1992
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No. 91-2276
UNITED STATES OF AMERICA,
Appellee,
v.
THOMAS P. ATWOOD,
Defendant, Appellant.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Gene Carter, U.S. District Judge]
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Before
Breyer, Chief Judge,
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Selya and Cyr, Circuit Judges.
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Robert M. Napolitano on brief for appellant.
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Richard S. Cohen, United States Attorney, and F. Mark
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Terison, Assistant United States Attorney, on brief for the
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United States.
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SELYA, Circuit Judge. This criminal appeal requires
SELYA, Circuit Judge.
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that we determine whether the government shortchanged the
appellant in respect to complying with a plea agreement. Finding
that appellant neglected to ask the government to do that which
he now condemns the government for not doing, we affirm the
conviction and sentence. Cf., e.g., John 16:24 ("Ask and ye
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shall receive.").
I
I
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Background
Background
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On March 13, 1991, a federal grand jury in the District
of Maine returned an indictment charging defendant-appellant
Thomas P. Atwood with conspiracy to distribute lysergic acid
diethylamide (LSD). In July, appellant pled guilty pursuant to a
written plea agreement (Agreement). The Agreement provided, in
relevant part, that appellant would cooperate with the government
and assist in ongoing investigations. In return, the prosecution
made three essential commitments:
1. To grant appellant use immunity (save
only for serious crimes of violence).
2. To refrain from opposing a two-level
reduction in the base offense level, U.S.S.G.
3E1.1, for appellant's acceptance of
responsibility.
3. To divulge the extent of appellant's
assistance in certain circumstances, viz.:
"At the request of the defendant, the United
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States Attorney's Office for the District of
Maine will make known the cooperation of the
defendant to any individual or entity to whom
the defendant wishes such information
disseminated." (Emphasis supplied.)
The Agreement contained no promise of a specific sentencing
2
recommendation. Rather, both parties reserved the right to
petition the district court "for the imposition of any lawful
sentence . . . ."
On November 26, 1991, appellant was sentenced. The
prosecutor recommended that the court impose a sentence at the
low end of the guideline sentencing range (GSR). Apart from this
comment, the prosecutor, to all intents and purposes, stood mute.
The court reviewed the presentence investigation report (PSI
Report), set the GSR at 210-262 months (offense level 34;
criminal history category IV),1 and sentenced appellant at the
range's nadir. This appeal followed.
II
II
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Issue Presented
Issue Presented
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On appeal, appellant is represented by a new attorney.
Counsel's argument is classic in its simplicity. He asseverates
that "the government breached the terms of the plea agreement
when it failed to advise the sentencing court of the nature and
extent of the defendant's cooperation." Had the government done
so, counsel's thesis runs, the sentencing court might have
departed downward, thus shortening appellant's sentence.2
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1In establishing the GSR, the district court gave Atwood the
two-level credit for acceptance of responsibility contemplated by
the Agreement. The prosecution did not oppose this adjustment.
2By means of a supplemental brief, appellant has attempted
to raise a second issue, contending that the district court
improperly relied on two uncounselled "drunk driving" convictions
in determining his criminal history score. But, the PSI Report
stated specifically that Atwood "was always represented by
counsel" in his previous dealings with the courts. Atwood did
not object to, or contradict, this statement. Similarly, he did
3
III
III
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Analysis
Analysis
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A.
A.
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Appellate Jurisdiction
Appellate Jurisdiction
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We confront, first, a threshold issue: the government
contends that there is no appellate jurisdiction. We disagree.
It is settled beyond peradventure in this circuit that,
ordinarily, a criminal defendant cannot ground an appeal on the
trial court's failure to depart downward from the GSR. See,
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e.g., United States v. Amparo, ___ F.2d ___, ___ (1st Cir. 1992)
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[No. 91-2010, slip op. at 10]; United States v. Lauzon, 938 F.2d
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326, 330 (1st Cir.), cert. denied, 112 S. Ct. 450 (1991); United
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States v. Romolo, 937 F.2d 20, 22 (1st Cir. 1991); United States
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v. Harotunian, 920 F.2d 1040, 1044 (1st Cir. 1990); United States
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v. LaGuardia, 902 F.2d 1010, 1012 (1st Cir. 1990). But, this
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appeal is a different breed of cat. The appeal does not
challenge the lower court's failure to depart per se. Rather,
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the appeal zeroes in on alleged prosecutorial misconduct,
appellant claiming that the government breached a material term
of a binding plea agreement. We have regularly exercised
appellate jurisdiction to oversee claims of that genre. See,
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e.g., United States v. Canada, ___ F.2d ___, ___ (1st Cir. 1992)
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[No. 91-1691, slip op. at 11-19]; United States v. Oyegbola, ___
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not object to the district court's use of the "drunk driving"
convictions. Under these circumstances, the issue that is the
subject of Atwood's supplemental brief has not been preserved for
appellate review. See United States v. Dietz, 950 F.2d 50, 55-56
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(1st Cir. 1991) (listing other cases).
4
F.2d ___, ___ (1st Cir. 1992) [No. 91-1152, slip op. at 8-10];
United States v. Garcia, 954 F.2d 12, 17-18 (1st Cir. 1992). The
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government has given us no reason either to doubt the propriety
of this practice or to eschew it here.
We will not paint the lily. An appellate court has
jurisdiction, on direct review, to consider an appeal that seeks
to ascertain whether the government satisfactorily complied with
the terms of a plea bargain.3
B.
B.
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The Merits
The Merits
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The court of appeals affords de novo review to the
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question of whether the prosecution violated the terms of a
written plea agreement in a criminal case. Canada, ___ F.2d at
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___ [slip op. at 14]; United States v. Moscahlaidis, 868 F.2d
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1357, 1360 (3d Cir. 1989). Honoring this tenet, and mindful
that, in the plea-bargaining context, the prosecution must often
be held to "the most meticulous standards of both promise and
performance," Correale v. United States, 479 F.2d 944, 947 (1st
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Cir. 1973), we find no hint of any breach.
Plea agreements are to be interpreted under contract-
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3The question of appellate jurisdiction is, of course,
entirely separate from the question of whether the defendant
appropriately preserved his claim for direct appellate review.
See, e.g., United States v. Argentine, 814 F.2d 783, 790-91 (1st
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Cir. 1987) (discussing applicability of raise-or-waive rule to a
claim that the prosecutor transgressed the terms of a plea
agreement). Because the instant appeal is baseless on the
merits, see text infra, it would be supererogatory for us to
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consider the issue of procedural default. We, therefore, abjure
that exercise.
5
law principles. See Garcia, 954 F.2d at 17; United States v.
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Hogan, 862 F.2d 386, 388 (1st Cir. 1988). Here, the Agreement is
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crystal clear. It limits the government's obligation to offer
its views about defendant's cooperation to those instances where
the defendant so requests. We assume this clause means precisely
what it says; after all, defendant and his trial counsel both
signed the Agreement and told the district judge they were
satisfied that it faithfully recounted the bargain.4
Appellant concedes that he never requested the
prosecutor to address the cooperation question at sentencing.
Having failed to ask, appellant was not entitled to receive.
Moreover, it was altogether reasonable for the prosecutor to
conclude that the lack of an affirmative request was not merely
an oversight. The PSI Report alluded to appellant's cooperation
in paragraph 17 a paragraph to which appellant raised no
objection.5 Under the explicit provisions of the Agreement, it
was for appellant to decide whether his cause was better served
by reliance on the PSI Report or by augmenting it with an
extemporaneous account from the prosecutor. The government had
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4If the Agreement were deficient for failure to spell out a
further, expanded promise, an objection to that effect should
have been raised at the change-of-plea hearing. Garcia, 954 F.2d
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at 17 n.3; Hogan, 862 F.2d at 389 n.4. No such objection ever
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surfaced in the court below. And, furthermore, the Agreement
contained defendant's express warranty "that there [were] no
further or other agreements or stipulations, either express or
implied, other than those contained in th[e] Agreement."
5Appellant did register eleven objections to the PSI Report,
challenging thirteen different paragraphs therein. All these
objections were resolved to appellant's satisfaction in the court
below. None of them touched upon paragraph 17.
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no right to play the quidnunc, second-guessing appellant's
choice. Refined to bare essence, then, a clearly expressed
condition precedent to the government's tentative obligation went
unfulfilled. Hence, the prosecutor was not obligated to launch
into a gratuitous spiel about Atwood's cooperation.
At the expense of belaboring the obvious, we also add
that, whatever additional information about appellant's
cooperation might have been imparted at sentencing, appellant
acknowledges that the GSR would not have been altered. Thus, the
incremental information could not have led to a downward
departure. It is nose-on-the-face plain that the Agreement did
not obligate the government to move for a downward departure
based on appellant's cooperation. And, we have squarely held
that a sentencing court may not depart on the basis of
substantial assistance (a synonym for "cooperation") except when
the government so requests. See Amparo, ___ F.2d at ___ [slip op
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at 11-12]; United States v. Drown, 942 F.2d 55, 56 n.2 (1st Cir.
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1991); Romolo, 937 F.2d at 23; LaGuardia, 902 F.2d at 1013-16;
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see also U.S.S.G. 5K1.1 (a downward departure in return for a
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defendant's "substantial assistance" is available "[u]pon motion
of the government"). Thus, appellant's complaint was destined to
self-destruct; whatever the prosecutor did or did not contribute
to the allocution, appellant received the most favorable sentence
possible under the circumstances a sentence at the bottom of
the applicable GSR.
IV
IV
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7
Conclusion
Conclusion
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We need go no further. When, as in this case, the
prosecutor did exactly what the government promised to do, a
claim that the plea agreement was breached will not lie.6 See
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Oyegbola, ___ F.2d at ___ [slip op. at 8]; Garcia, 954 F.2d at
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17; Hogan, 862 F.2d at 389. Finding no cognizable error in the
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proceedings below, the conviction and concomitant sentence must
be
Affirmed.
Affirmed.
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6The rule, of course, is not ironclad. Under certain
circumstances, there may be exceptions for instances of a
prosecutor's halfhearted compliance with the terms of a plea
agreement, United States v. Brown, 500 F.2d 375, 377-78 (4th Cir.
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1974), or where the prosecutor has injected into the dialogue
"material reservations about the agreement to which the
government had committed itself," Canada, ___ F.2d at ___ [slip
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op. at 16], or where "the government immediately took away with
the left hand what it had given with the right," United States v.
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Voccola, 600 F. Supp. 1534, 1537 (D.R.I. 1985). This case,
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however, does not implicate any of these exceptions.
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Document Info
Docket Number： 91-2276
Filed Date： 5/6/1992
Precedential Status： Precedential
Modified Date： 9/21/2015