United States v. Quinyahta Rochelle ( 2020 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 18-3796 & 18-3805
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UNITED STATES OF AMERICA
v.
QUINYAHTA ROCHELLE,
Appellant
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On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Nos. 2-17-cr-00277-001 and 2-18-cr-00117-001)
District Judge: Hon. Arthur J. Schwab
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Submitted Under Third Circuit L.A.R. 34.1(a)
January 13, 2020
Before: JORDAN, GREENAWAY, JR., and KRAUSE, Circuit Judges.
(Filed: January 16, 2020)
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OPINION
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
This disposition is not an opinion of the full Court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.
JORDAN, Circuit Judge.
Quinyahta Rochelle pled guilty to a number of crimes, including aggravated
identity theft, hacking, and unlawful possession of a firearm by a felon. As part of her
plea, she waived her right to appeal and the government agreed to recommend an
acceptance-of-responsibility reduction in her sentence and also to file a section 5K1.1
letter if, and only if, she acted in a manner meriting those concessions. But Rochelle
continued her criminal career even after pleading guilty. The government thus declined
to give her the benefit of either the sentencing recommendation or the 5K1.1 letter.
Rochelle now appeals and seeks to withdraw her guilty plea. Because the government
did not violate the terms of the plea agreement, this appeal is barred by the appellate
waiver to which Rochelle assented. We will accordingly dismiss the appeal.
I. BACKGROUND
In October of 2017, a grand jury indicted Rochelle for being a felon in possession
of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1). Some months later,
the government filed a five-count information stating a laundry list of additional charges
against Rochelle, including wire fraud and aggravated identity theft. Shortly after the
government filed the information, Rochelle agreed to plead guilty to all of the charges in
the information and to the firearms charge in the previous indictment.
The terms of her plea were governed by a written plea agreement containing three
provisions relevant here. First, the government “agree[d] to recommend a two level
downward adjustment for acceptance of responsibility and, pursuant to U.S.S.G.
§ 3E1.1(b), to move for an additional one level adjustment.” (App. at 24.) But the
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government reserved the right to decline to make that recommendation if Rochelle
“act[ed] in a manner inconsistent with acceptance of responsibility[.]” (Id.) Second,
Third, and finally,
Rochelle “waive[d] the right to take a direct appeal from her conviction or sentence under
28 U.S.C. § 1291 or 18 U.S.C. § 3742” unless the government appealed or her sentence
exceeded the statutory maximum or advisory guidelines range. (App. at 24.) Rochelle
and her attorney both signed the plea agreement, and Rochelle represented to the Court
that she had reviewed it and understood its full contents. The Court accepted her plea
and set sentencing for November 2018.
It soon emerged, however, that Rochelle (who had been free on bond pending
sentencing) had been committing additional crimes, including after she had signed the
plea agreement. Law enforcement officers came to believe that Rochelle obtained stolen
credit card information, made fraudulent purchases with that information, and shared the
information with others. She was ultimately charged in a criminal complaint and
subsequently indicted on criminal charges stemming from that conduct. That case
remains pending.
After Rochelle was charged with new criminal conduct, the government indicated
that it would no longer support her receiving an acceptance-of-responsibility reduction
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under U.S.S.G § 3E1.1. The District Court then made a tentative ruling that Rochelle
would not be entitled to such a reduction. That ruling prompted Rochelle, just six days
before sentencing was scheduled, to attempt to withdraw her guilty plea. The
government opposed the motion, and the District Court denied it, noting that Rochelle
had not asserted her innocence and that the government’s decision not to support the
acceptance of responsibility reduction was an insufficient reason to allow her to withdraw
the plea.
During the sentencing hearing, the Court confirmed that Rochelle was not entitled
to any reductions for acceptance of responsibility. The government also noted that it had
not filed a letter under section 5K1.1 because of Rochelle’s ongoing criminal conduct.
The Court sentenced Rochelle to 116 months in prison, followed by three years of
supervised release.
She now appeals.
II. DISCUSSION1
We will uphold a knowing and intelligent appellate waiver unless it “work[s] a
miscarriage of justice.” United States v. Khattak, 273 F.3d 557, 563 (3d Cir. 2001).2 A
defendant can also free herself of a guilty plea and appellate waiver if the government
1
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a). But we will not
exercise that jurisdiction if we conclude that an appellate waiver is valid. United States v.
Gwinnett, 483 F.3d 200, 203 (3d Cir. 2007).
2
Rochelle does not argue that her plea was not knowing and intelligent. Nor
could she. The record demonstrates that the District Court thoroughly advised her of her
rights, and that she had spoken to her lawyer about the plea as well.
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breaches the terms of the plea agreement. United States v. Schwartz, 511 F.3d 403, 405
(3d Cir. 2008); see also United States v. Moscahlaidis, 868 F.2d 1357, 1363 (3d Cir.
1989) (holding that if the government breaches the plea agreement, the District Court can
either order specific performance of the agreement or allow withdrawal of the plea).
There is no miscarriage of justice here. And because the government adhered to the
terms of the agreement, this appeal is barred by the appellate waiver.
A. Enforcing the Plea Would Not Work a Miscarriage of Justice
Invalidating an appellate waiver on the basis that it would work a miscarriage of
justice is appropriate only in “unusual circumstance[s.]” Khattak, 273 F.3d at 562. And
there is no basis to conclude that such circumstances are present in this case. This was a
standard guilty plea resulting in a sentence within the guidelines range. Rochelle has not
made the slightest showing that enforcing the plea would result in a miscarriage of
justice. There is, in short, no reason to invalidate the waiver.
B. The Government Did Not Breach the Terms of the Agreement3
“A defendant’s appellate waiver is not enforceable if the government breaches its
own obligations under a plea agreement.” Schwartz, 511 F.3d at 405. “When assessing
whether a plea agreement has been breached, we first identify the terms of the agreement
and the government’s alleged improper conduct, and next determine whether the
government has violated its obligations under that agreement.” United States v. Thung
Van Huynh, 884 F.3d 160, 165-66 (3d Cir. 2018) (internal quotation marks and citation
3
Whether the government breached a plea agreement is a question of law subject
to plenary review. United States v. Warren, 642 F.3d 182, 187 n.6 (3d Cir. 2011).
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omitted). The “core question” is “whether the government’s conduct [was] inconsistent
with what was reasonably understood by the defendant when entering the plea of guilty.”
Id. (alteration in original) (citation omitted).
Rochelle asserts that the government breached its obligations in two ways – first,
by declining to recommend the acceptance-of-responsibility reduction, and second, by
declining to file a 5K1.1 letter. Neither of her arguments has merit.
1. Rochelle’s Continuing Criminal Activity Demonstrated That She Did
Not Accept Responsibility for Her Actions
The government’s agreement to recommend a downward departure for acceptance
of responsibility was explicitly conditioned on Rochelle behaving “in a manner
[]consistent with acceptance of responsibility[.]” (App. at 24.) We have previously
stated that “[c]ontinual criminal activity . . . is inconsistent with an acceptance of
responsibility[.]” United States v. Ceccarani, 98 F.3d 126, 130 (3d Cir. 1996). Rochelle
was thus on notice that additional criminal conduct would negate the government’s
obligation to recommend a downward departure under section 3E1.1. The government’s
decision to oppose the reduction was entirely in keeping with the terms of the agreement.
Rochelle also argues that the additional criminal conduct may have occurred
before the crimes to which she pled guilty and thus it was inappropriate to consider it in
assessing acceptance of responsibility. The District Court, however, found that the
conduct occurred after her initial crimes and her guilty plea. We review such a factual
finding for clear error. United States v. Moscahlaidis, 868 F.2d at 1360. There was no
such error here; the conclusion is amply supported by the record.
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2. Declining to File a Section 5K1.1 Letter Was Within the Government’s
Discretion
When a plea agreement mentions a 5K1.1 letter, we examine whether the
government’s refusal to file such letter was in good faith. United States v. Isaac, 141
F.3d 477, 483 (3d Cir. 1998). Where the defendant “has alleged neither bad faith nor
unconstitutional motive on the part of the government,” and where the government “acted
within the terms of the agreement in not seeking the departure,” the government’s
exercise of its discretion will not be disturbed. United States v. Swint, 223 F.3d 249, 253
n.5 (3d Cir. 2000). We determine the scope of the terms of the agreement through
traditional principles of contract interpretation. Id. at 252-53.
Here, there is no doubt that the government’s refusal to file the letter was in good
faith.
Based on evidence of Rochelle’s additional crimes, the government was clearly within its
rights under the agreement to decline to file the 5K1.1 letter.
Consistent with that straightforward analysis, we have previously upheld the
government’s right to condition the filing of a 5K1.1 letter on the defendant’s good
behavior. See Schwartz, 511 F.3d at 406 (allowing the government to “withdraw a
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downward departure motion when a defendant agrees not to violate the law and the
written plea agreement reserves to the government the right to withdraw the motion upon
that occurrence”). The government’s actions here were within the scope of the plea
agreement and consistent with our precedent.4
III. CONCLUSION
For the foregoing reasons, we will enforce the appellate waiver and dismiss the
appeal.
4
Rochelle’s remaining arguments deal exclusively with the merits of the District
Court’s sentence and rulings. We thus decline to consider them.
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