U.S. v. Valencia ( 1993 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-7417
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
FRANCISCO LOZANO VALENCIA,
Defendant-Appellant.
Appeal from the United States District Court
For the Southern District of Texas
(Februaryh 24, 1993)
Before REAVLEY, SMITH, and DeMOSS, Circuit Judges.
DEMOSS, Circuit Judge:
I.
On February 27, 1991, Francisco Lonzano Valencia pleaded
guilty, pursuant to a plea agreement, to aiding and abetting the
possession, with intent to distribute, in excess of five kilograms
of cocaine. In exchange for Valencia's plea, the government
agreed, among other things, to stipulate that Valencia accepted
responsibility for his conduct in accordance with USSG § 3E1.1.
This would entitle Valencia to a two-level reduction in offense
level.
The Presentence Report (PSR) ordered by the Trial Court
concluded that Valencia was not entitled to the two-level reduction
in the offense level for acceptance of responsibility for the
offense because Valencia did not accept responsibility for his
relevant conduct. Valencia objected to the PSR, among other
things, specifically on the ground that he was not entitled to that
reduction.
At the initial sentencing hearing on May 15, 1991, the
district court granted Valencia a one-level reduction for
cooperation with the government and a one-level reduction for
acceptance of responsibility, resulting in a sentence of 120 months
plus five years of supervised release and a $50 special assessment.
Valencia appealed, challenging the propriety of his sentence.
On March 18, 1992, this Court vacated that sentence and
remanded for resentencing, finding that a district court may not
award a one-level reduction for partial acceptance of
responsibility. We held that the Trial Court must either give a
two-point reduction or it may not reduce the sentence at all.
United States v. Valencia, 957 F.2d 153 (5th Cir. 1992).
Valencia was resentenced on May 22, 1992. The district court
denied Valencia any credit for acceptance of responsibility at that
proceeding but did grant him a two-point reduction for substantial
assistance, resulting in a sentence of 108 months incarceration, a
five-year term of supervised release, and a $50 special assessment.
The government argued at the resentencing that despite its
stipulation to the contrary, Valencia "clearly . . . should not be
entitled to any credit for acceptance of responsibility."
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Valencia again appeals, claiming that the government breached
the plea agreement when it stated that Valencia did not deserve a
two-level reduction for acceptance of responsibility.
We VACATE the sentence and REMAND for resentencing by a
different judge.
II. DISCUSSION
At the initial sentencing on May 15, 1991, the probation
officer submitted the PSR that concluded that Valencia had denied
any involvement in the offense to which he pleaded guilty.
Valencia's original counsel filed objections to the PSR in an
attempt to clarify Valencia's apparent non-acceptance of
responsibility. Counsel explained that no attorney was present
when Valencia, a Colombian National who did not speak English, was
debriefed by the probation officer responsible for compiling the
PSR and that Valencia had been told to refrain from speaking to
anyone without his counsel present, and thus, did not talk openly
with the probation officer.
The court noted Valencia's objection to the PSR and stated
that he was "about halfway convinced" as to Valencia's partici-
pation in accepting responsibility. He thus gave him a one-level
reduction for that category.
At resentencing on May 22, 1992, Valencia's attorney claimed
that his client was remorseful for his conduct, fully accepted
responsibility, and had he been familiar with the debriefing, would
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have been more forthcoming in his statements.1 Following defense
counsel's argument, the following exchange took place in relevant
part between the trial judge and the prosecutor, Mr. Dies:
THE COURT: What is the Government's thoughts in that
regard?
MR. DIES: Your Honor, what kind of frightens me a little
bit is counsel's assertion that today the defendant is
more remorseful and accepts more his responsibility than
he did at the initial plea of guilty. Is that to say,
then, your Honor, logically extending the argument, that
if we somehow mess up today and it gets reversed or
remanded, then we come back four months later, if the
defendant is even more remorseful in four months from
now, he gets more credit?
My position is, Your Honor, that although we may
have at the outset agreed by a plea bargaining that this
defendant accepted responsibility for his conduct, he
failed to demonstrate that to you on the record with his
debriefing and with the written statement, and clearly,
Your Honor, he should not be entitled to any credit for
acceptance of responsibility. It was incumbent upon the
defendant, not the lawyers and their skills, to show the
Court acceptance of responsibility. I am of the opinion,
Your Honor, from the facts today and the facts at the
entry of the plea of guilty, that the defendant by his
assistance to authorities, by his debriefs, played a
substantial role in the resolution of the case over all
and is entitled to a reduction that you see fit for
substantial assistance, but nothing because he hasn't
demonstrated to you, Your Honor, a true acceptance of
responsibility. (emphasis added).
Defense counsel immediately objected that the government had
breached the plea agreement with this statement and demanded
specific performance of the plea agreement.
The district court ruled on the objection and stated:
"Specifically, the court notes for the record its perception that
1
Valencia's retained attorney withdrew as his counsel after
the initial sentencing and the Federal Public Defender was
appointed to perfect Valencia's appeal.
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it respectfully requested a response from Mr. Dies earlier with
regard to this issue. Mr. Dies was therefore duty bound to make
some offering to the court. The court does not characterize that
as a breach of the agreement that induced this defendant to plead
guilty in this case for any purpose."
The government relies upon United States v. Hand, 913 F.2d 854
(10th Cir. 1990) to support its contention that the government need
not stand mute in the face of incorrect or misleading testimony.
It points out that the Hand court held that the prosecutor, who had
agreed to recommend that the defendant receive a reduction in
sentence for having a minor role in the offense, had a right to
cross examine the defendant in light of incorrect or misleading
testimony offered to the trial court.
Noting the court's ruling on Valencia's objection to the
prosecutor's comments in question, the government now argues that
no breach occurred because the prosecutor was merely correcting
inaccurate factual representations and responding to an inquiry by
the court. The government also argues that because the district
court found that the government did not breach the plea agreement
the finding must be reviewed under the clearly erroneous standard.
Even if a breach occurred, the government contends the breach
constituted harmless error because the prosecutor's argument did
not influence the judge's decision and therefore Valencia would end
up in the same position.
Whether the government's conduct violates the terms of the
plea agreement is a question of law. United States v. Badaracco,
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954 F.2d 928 (3rd Cir. 1992). A breach of a plea agreement
constitutes plain error and our review is de novo. United States
v. Goldfaden, 959 F.2d 1324, 1328 (5th Cir. 1992).
The principles governing the government's obligation to honor
the terms of a plea agreement are well-settled. If a guilty plea
is entered as part of a plea agreement, the government must
strictly adhere to the terms and conditions of its promises.
United States v. Kerdachi, 756 F.2d 349, 351-52 (5th Cir. 1985).
United States v. Badaracco, 954 F.2d 928. Furthermore, when a
guilty 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."
Santobello v. New York, 404 U.S. 257, 262, 92 S. Ct. 495, 30 L. Ed.
2d 427 (1971). In determining whether the terms of a plea
agreement have been violated, the court must determine whether the
government's conduct is consistent with the defendant's reasonable
understanding of the agreement. United States v. Huddleston, 929
F.2d 1030, 1032 (5th Cir. 1991). Furthermore, if it is determined
that a plea agreement has been breached, "specific performance [of
the agreement] is called for, [and] Appellant must be sentenced by
a different judge." United States v. Goldfaden, 959 F.2d 1324 at
1329 (citing Santobello, 404 U.S. at 263); see also, United States
v. Badaracco, 954 F.2d 928 at 938-39, 941.
None of the government's arguments are persuasive.
We observe first that the government mischaracterizes its
obligation under the plea agreement, which plainly provides that
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the parties stipulated that Valencia accepted responsibility for
his offense in the following words:
The United States stipulates that I have accepted
responsibility for my actions (§ 3E1.1 Sentencing
Guidelines).
Plea Agreement, 13(c).
While the government correctly argues that it may correct
factual inaccuracies in the record, United States v. Goldfaden,
959 F.2d at 1328; and that post-sentencing remorse should not be
considered by the judge in determining whether to credit the
defendant for acceptance of responsibility, it can not argue that
the other evidence in the case establishes that Valencia was not
entitled to a reduction for acceptance of responsibility.
"If the stipulation bargained for by [defendant]--and for
which he `surrender[ed] . . . certain constitutional rights
including a meaningful restriction of his liberty'--is to mean
anything, it must preclude remarks like the government made here."
United States v. Badaracco, 954 F.2d 928 at 941.
Furthermore, the government cannot rely on United States v.
Hand, 915 F.2d 854 to justify its behavior at resentencing. The
Hand court distinguished that case from cases such as this one
where a prosecutor promised a recommendation and then proceeded to
argue the opposite position. The prosecutor in Hand presented no
direct evidence that the defendant played more than a minor role
nor did he characterize the evidence elicited on cross-examination,
nor argue the effect of the evidence to the sentencing judge.
Here, the prosecutor did characterize the evidence and did
argue the effect of the evidence to the judge. Here, the
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prosecutor argued the opposite position in plain violation of the
language of the plea agreement.
Finally, the government's argument that harmless error
analysis should be applied here because the judge did not base its
holding upon the government's recommendation fails.
The interest of justice and standards of good faith in
negotiating plea bargains require reversal where a plea bargain is
breached. Santobello v. New York, 404 U.S. at 262-63. A lesser
standard would permit the government to make a plea bargain
attractive to a defendant, subsequently violate the agreement and
then argue harmless error, thereby defrauding the defendant.
Here we find that the comments made by the prosecutor to the
court in support of the denial of credit for acceptance of
responsibility by Valencia breached the plea agreement between the
parties and therefore constitutes reversible error.
III. CONCLUSION
On appeal, Valencia has elected specific performance rather
than withdrawal of his plea as his remedy.
We VACATE Valencia's sentence and REMAND to the district court
with instruction that it transfer this matter to another judge who
will resentence Valencia in accordance with the requirements of
this opinion. See Santobello v. New York, 404 U.S. at 263 and
United States v. Goldfaden, 959 F.2d at 1329. We intimate no view
as to what determination should be made, on remand, on the issue of
acceptance of responsibility.
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