United States v. Shelton , 179 F. App'x 809 ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
5-4-2006
USA v. Shelton
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-1243
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 05-1243
____________
UNITED STATES OF AMERICA
v.
RAYMOND SHELTON,
Appellant
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
D.C. Crim. Action No. 02-00189
(Honorable John R. Padova)
____________
Submitted Under Third Circuit LAR 34.1(a)
April 25, 2006
Before: FUENTES, STAPLETON, and ALARCÓN,* Circuit Judges
(Filed: May 4, 2006 )
____________
OPINION OF THE COURT
____________
*
The Honorable Arthur L. Alarcón, Senior Judge, United States Court of Appeals
for the Ninth Circuit, sitting by designation.
ALARCÓN, Circuit Judge.
Mr. Shelton entered a plea of guilty for violating 18 U.S.C. §§ 371, 846, 922(g),
and 922(o) and the District Court sentenced him to 168 months imprisonment. Mr.
Shelton appeals from his sentence on the grounds that the Government breached the plea
agreement and that the District Court erred when it independently determined the base
offense level under the United States Sentencing Guidelines (“Sentencing Guidelines”).
We vacate and remand for resentencing by another district court judge.
I
In October 2002, Mr. Shelton entered into a plea agreement (“Agreement”) with
the Government wherein he pled guilty to conspiracy to possess and transfer a machine
gun, conspiracy to distribute ecstacy, possession of a firearm by a convicted felon, and
possession and transfer of a machine gun in violation of 18 U.S.C. §§ 371, 846, 922(g),
and 922(o). In the Agreement, the Government stipulated that the firearms offenses to
which Mr. Shelton pled guilty would “carry a base offense level under the Sentencing
Guidelines of 20.” The presentence investigation report (“PSR”) calculated a base
offense level of 26 for those same offenses. At Mr. Shelton’s first sentencing hearing, in
January 2003, the Government took the position that the PSR correctly calculated the base
offense level and asked for a “substantial sentence.” The District Court found that the
base offense level for the firearms offenses was 26 and sentenced Mr. Shelton to 188
months imprisonment. Mr. Shelton appealed his sentence on the grounds that the
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Government breached the Agreement and that the district court erred in adopting the
PSR’s calculation of his base offense level at 26 for his § 922(g)(1) violation because it
was erroneously calculated.
In March 2004, this Court vacated Mr. Shelton’s sentence, concluding that the
Government breached the Agreement by stating that the PSR, rather than the Agreement,
correctly stated the offense level and “asking for a substantial sentence.” United States v.
Shelton, 91 Fed. Appx. 247, 248 (3d Cir. 2004) (“Shelton I”). On remand, the District
Court resentenced Mr. Shelton to a term of 168 months imprisonment from which he now
appeals.
II
A
Mr. Shelton argues that the Government breached the Agreement at the
resentencing hearing by advocating a base offense level higher than the one stipulated to
in the Agreement. Whether the Government breached its plea agreement with a
defendant is a question of law subject to a de novo review. United States v. Rivera, 357
F.3d 290, 294 (3d Cir. 2000).
A plea agreement is analyzed under contract law principles. United States v.
Moscahlaidis, 868 F.2d 1357, 1361 (3d Cir. 1989). “Because the defendant, by entering
into the plea, surrenders a number of [his or] her constitutional rights, ‘courts are
compelled to scrutinize closely the promise made by the government in order to determine
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whether it has been performed.’” United States v. Nolan-Cooper, 155 F.3d 221, 236 (3d
Cir. 1998) (quoting United States v. Hayes, 946 F.2d 230, 233 (3d Cir. 1991)).
With these standards in mind, this Court performs a three-step analysis to
determine whether the Government has breached a plea agreement. Moscahlaidis, 868
F.2d at 1360. First, the relevant terms of the plea agreement and alleged misconduct of
the Government are identified. Id. Second, this Court determines whether the
government violated its obligations under the plea agreement by asking “whether the
government’s conduct is inconsistent with what was reasonably understood by the
defendant when entering the plea of guilty.” United States v. Badaracco, 954 F.2d 928,
939 (3d Cir. 1992) (quoting United States v. Nelson, 837 F.2d 1519, 1521-22 (11th Cir.
1988)). While “the Government need not endorse the terms of its plea agreements
‘enthusiastically,’” Id. at 941 (quoting United States v. Benchimol, 471 U.S. 453, 455
(1985)), it is the rule of this Circuit that “the government must adhere strictly to the terms
of the bargains it strikes with defendants.” Moscahlaidis, 868 F.2d at 1361 (quotations
omitted). Third, an appropriate remedy is fashioned for any violations that occurred. Id.
The Agreement states, in relevant part, that
[t]he government and defendant agree and stipulate that the
firearms offenses in Counts 5, 8, 11, 12 and 17 to which
defendant is to plead guilty . . . carry a base offense level
under the Sentencing Guideline of 20 pursuant to Section
2K2.1(a)(4)(B), because the offense involved a firearm
described in 26 U.S.C. § 5845(a) and 18 U.S.C.
§ 921(a)(30) . . . .
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Mr. Shelton argues that the Government breached the Agreement when it
advocated that the court impose a sentence higher than that contemplated by the
Agreement, namely, one that “fall[s] within the sentencing guideline range as determined
by the Court, absent unusual circumstances.” Mr. Shelton contends that Government also
breached the Agreement when it advised the District Court that it “would be wise to give
heavy weight to the guidelines,” knowing that the Sentencing Guidelines are now
advisory, and knowing that Agreement provided for a base offense level lower than that
recommended under the Sentencing Guidelines. The Government maintains that it did
not breach the Agreement because it stated to the District Court that it was bound by the
plea agreement and “would make no recommendations inconsistent with that agreement.”
The holding in Rivera is particularly instructive here. In Rivera, this Court found
that the Government breached the plea agreement when the prosecutor advocated that the
total offense level recommended by the Probation Office be applied, even though it was
higher than the offense level stipulated to in the plea agreement. 357 F.3d at 295. The
plea agreement stated that the “applicable guidelines total offense level is 35” while the
Probation Office recommended an offense level of 39. Id. This court found that “[t]he
statement by the United States’ attorney that ‘we stand by the probation officer’s
conclusions’ . . . was inconsistent with the stipulation entered into by the United States
that the applicable Offense Level would be 35.” Id. Accordingly, this Court held that by
“endorsing the Probation Office’s recommendation of an [o]ffense [l]evel of 39, the
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government breached its agreement that the stipulated applicable [o]ffense [l]evel would
be 35.” Id.
Similarly, in Badaracco, this Court held that “the government violated the spirit, if
not the letter, of the plea agreement” when the it stipulated to defendant’s minimal role in
the plea agreement but argued at sentencing that he played more than a minimal role. 954
F.2d at 940-41. This Court rejected the Government’s argument that it was merely
exercising its reserved right under the plea agreement to inform the court of the “nature
and extent” of Badaracco’s activities, holding instead that the Government breached the
plea agreement because its conduct was inconsistent with what Badaracco reasonably
understood when he entered his guilty plea. Id. at 939; see also Hayes, 946 F.2d at 235
(Government breached the plea agreement where it promised to make no recommendation
as to the specific sentence, and expressly “advocate[d] a sentence within the standard
range of the guideline as to [one of the counts] and a lengthy period of incarceration on
the [other] counts.”); Moscahlaidis, 868 F.2d at 1361 (Government breached the plea
agreement where it promised to take no position at sentencing but provided conclusory
statements about Moscahlaidis’ character because “such conclusions . . . amount to
nothing less that a ‘transparent effort to influence the severity’ of the sentence”) (quoting
United States v. Crusco, 536 F.2d 21, 26 (3d Cir. 1976)).
Citing Rivera, this Court held in Shelton I that the Government breached the
Agreement at the initial sentencing hearing when it stated that it believed the base offense
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level was correctly calculated in the PSR, rather than in the Agreement, and asked for a
“substantial sentence” because that position “conflicted directly with the government’s
unambiguous and specific Agreement stipulation that Shelton’s base offense level was
20.” Shelton, 91 Fed. Appx. at 248.
At Mr. Shelton’s resentencing hearing, the Government stated that his sentence
“should fall within the sentencing guideline range” – which was higher than the range
contemplated by the plea agreement. Though the Government did state that it was
“bound by the plea agreement,” it violated the Agreement when it advocated a sentence
higher than the range contemplated by the stipulated base level offense of 20, and stated
that the court would be “wise to give heavy weight to the guidelines” even though they
are now advisory and would result in a longer sentence.
Under Rivera and Badaracco, the Government’s statements violated both the letter
and the spirit of the Agreement because they advocated a higher base offense level than
the one stipulated to in the Agreement, contrary to what Mr. Shelton reasonably
understood the terms of the Agreement to be when entering the plea of guilty. Rivera,
357 F.3d at 295; Badaracco, 954 F.2d at 939-41. Even if the Government believed that
the PSR, rather than the Agreement, correctly calculated the base offense level, it is
required to exercise its “option of silence” rather than advocate a higher base offense
level. Nolan-Cooper, 155 F.3d at 237. This is especially so where, as here, the
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Sentencing Guidelines calculation information was part of the District Court’s record and
was discussed in the PSR. Id. at n.11.
The Government’s contention that its comment that the sentence should fall within
the sentencing guideline range was merely a “preliminary, general comment regarding the
Booker decision” is unpersuasive. Not only was the Government’s position on Booker
unsolicited, it squarely contradicted the Government’s agreement to advocate a base
offense level of 20.
The Government also argues that the analysis differs here because some of its
comments were made in response to the District Court’s repeated questioning on the
Government’s view of the “correct base offense level and sentencing guideline range.”
This contention has been squarely rejected by this Court in Nolan-Cooper. 155 F.3d at
238 (“While such questions [from the court] may place the government in an
uncomfortable situation, it still must inform the court that it cannot answer the question
without breaching its plea agreement. Sometimes ‘the better part of valor is discretion.’”)
(quoting William Shakespeare, King Henry the Fourth, Part I, act V, scene iv, line 12)).
Since Mr. Shelton does not wish to withdraw his plea, the appropriate remedy is
specific performance of the Agreement which requires that sentence be vacated and
remanded for resentencing by a different judge. Nolan-Cooper, 155 F.3d at 241 (if the
defendant does not wish to withdraw the plea, specific performance is the remedy and the
case must be remanded for full resentencing by a different judge).
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B
Mr. Shelton’s argument that this Court’s order of specific performance of the
Agreement in Shelton I obligated the District Court to impose a sentence reflecting the
stipulated sentencing range of 77 to 96 months imprisonment is unavailing.
Mr. Shelton’s Agreement states at ¶ 8 that “the Court may make factual and legal
determinations that differ from [the] stipulations [herein] and that may result in an
increase or decrease in the Sentencing Guidelines range and the sentence that may be
imposed.” Additionally, Mr. Shelton agreed at his change of plea hearing that one of the
terms of the Agreement was that the stipulations concerning the Sentencing Guidelines
“are not binding upon the Court or upon the Probation Department.” The District Court
informed Mr. Shelton at the hearing that he would be sentenced in accordance with the
Sentencing Guidelines and other applicable law, after considering the PSR. He was also
informed that he would not be entitled to withdraw his guilty plea should the Court
impose a sentence more severe than he expected or than was recommended by the
Agreement. As this Court stated in Badaracco, when the Government fails to adhere to a
plea agreement,“[i]t follows that specific performance is the only adequate remedy, i.e.,
resentencing under conditions in which the government adheres to its plea agreement.”
Badaracco, 954 F.2d at 941 (emphasis added).
Based on the plea agreement, Mr. Shelton had a reasonable expectation that the
Government, at least absent any basis for departure, would advocate a sentence, within
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the guideline range obtained by starting with a base level of 20, which range the parties
agree would be 77 to 96 months. On remand for resentencing, the Government shall not
advocate a sentence beyond that range.
C
In Shelton I, this Court rejected Mr. Shelton’s contention that the PSR
miscalculated his base offense level at 26 because it relied on the Sentencing Guidelines’
definition of “felony conviction” rather than the statutory definition found in § 922(g)(1).
In reaching its determination that the PSR’s calculation was not erroneous, this Court
stated that “the district judge’s decision to adopt the PS[R]’s calculation of Shelton’s base
offense level of 26 . . . was correct.” Id. at 249. This comment warrants clarification on
two counts.
First, the holding applies only to the correctness of the calculation found in the
PSR. It did not instruct the District Court to apply the base offense level of 26. Second,
because Shelton I was decided prior to the rendering of United States v. Booker, 543 U.S.
220 (2005), when the Sentencing Guidelines were mandatory, the District Court erred in
concluding at the post-Booker resentencing that it was bound by Shelton I to apply the
PSR’s base offense level of 26 because it was the “law of the case.” In view of the
advisory nature of the Sentencing Guidelines under Booker, the District Court may, upon
resentencing, consider that the PSR calculation is based on the now advisory Sentencing
Guidelines.
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For the foregoing reasons, we will vacate and remand for resentencing by another
district court judge.
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