United States v. Rivera

Opinions of the United

2004 Decisions States Court of Appeals

for the Third Circuit

2-9-2004

USA v. Rivera

Precedential or Non-Precedential: Precedential

Docket No. 02-3067

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PRECEDENTIAL Counsel for Appellant

UNITED STATES COURT OF

APPEALS FOR THE THIRD CIRCUIT Clayton A. Sweeney, Jr. (Argued)

P.O. Box 55441

No. 02-3067 Philadelphia, PA 19127-5441

Counsel for Appellee

UNITED STATES OF AMERICA

Christopher J. Christie

v. United States Attorney

George S. Leone

ISAAC RIVERA, Chief, Appeals Division

Appellant 970 Broad Street, Room 700

Newark, N.J. 07102-2535

ON APPEAL FROM THE UNITED Norman Gross (Argued)

STATES DISTRICT COURT Assistant United States

FOR THE DISTRICT OF Attorney

NEW JERSEY United States Courthouse

401 Market Street, Fourth Floor

District Court Judge: Camden, N.J. 08101-2098

Honorable Jerome B. Simandle

(D.C. No. Cr. 01-373-05)

OPINION OF THE COURT

Argued: December 4, 2003

Before: SLOVITER and ALITO, Circuit OBERDORFER, Senior District Judge:

Judges, and OBERDORFER,* District

Judge. Isaac Rivera appeals from his

sentence after he pled guilty pursuant to

(Opinion Filed: February 9, 2004) a plea agreement with the United States.

For the reasons stated below, we hold

that the government breached that

agreement and vacate the sentence. We

* then follow the well-established

The Honorable Louis F.

procedure of remanding to the district

Oberdorfer, Senior District Judge for the

court for resentencing.

District of Columbia, sitting by

designation.

1

I. The dispute on appeal focuses on

the provisions of the plea agreement

From approximately June 2000 addressing sentencing, in particular a

until on or about June 5, 2001, Rivera 1 section titled “Stipulations.” App. at

led a drug trafficking conspiracy that 60(a). That section stated that the United

imported kilogram-quantities of cocaine States and Rivera “agree to stipulate at

powder from his suppliers in Puerto sentencing to the statements set forth in

Rico, converted some of that powder into attached Schedule A.” Id. Schedule A,

cocaine base, and distributed the cocaine in turn, provided in its first sentence that

and cocaine base in Camden, New the United States and Rivera “agree to

Jersey. On October 9, 2001, a federal stipulate at sentencing to the statements

grand jury returned a two-count set forth below, subject to the conditions

indictment against Rivera. Count One in the attached plea agreement.” Id. at

charged him with conspiracy to distribute 64(a). Schedule A also stated that the

and to possess with intent to distribute base Offense Level was 38. By way of

more than 50 grams of cocaine base and adjustment, however, Rivera would

more than five kilograms of cocaine receive a two-level Offense Level

powder in violation of 21 U.S.C. § 846. reduction if his “acceptance of

Count Two charged possession with responsibility continue[d] through

intent to distribute more than 500 grams sentencing.” Id. He was to receive an

of cocaine in violation of 21 U.S.C. § additional one-level decrease if the

841(a)(1). On November 7, 2001, Rivera Offense Level set by the district court

and the United States entered into an was 16 or greater. Id. Section 5, the

agreement which provided, among other provision focused on by the parties on

things, that Rivera would plead guilty to appeal, stated, “In accordance with the

Count One of the indictment and the above, the applicable guidelines total

United States would dismiss Count Two. offense level is 35.” Id. (emphasis

supplied).

The plea agreement also stated

1 some conditions: that the “sentence to be

The underlying criminal

imposed upon Isaac [Rivera] is within

indictment named Rivera as Isaac Burgos

the sole discretion of the sentencing

a/k/a Isaac Bonilla a/k/a Isaac Rivera. At

judge” and that the government “cannot

the change of plea hearing, by the

and does not make any representation or

consent of both parties, the district court

promise as to what guideline will be

granted a motion to deem changed all

found applicable . . . or what sentence

pleadings and documents to reflect that

Isaac [Rivera] will ultimately receive.”

the defendant (now appellant)’s true

App. at 59(a). The plea agreement

name is Isaac Rivera, with Burgos and

further stated that “[e]xcept as otherwise

Bonilla listed as aliases.

2

provided in this agreement, [the United The court asked: “Does the government

States] reserves its right to take any take any position with regard to role in

position with respect to the appropriate the offense?” App. at 29(a). By way of

sentence to be imposed on [Rivera] by allocution, the prosecutor responded, “we

the sentencing judge.” Id. at 59(a)-60(a). stand by the probation officer’s

conclusions. . . . The notion that

On February 10, 2002, the United because Schedule A refers to a specific

States Probation Office advised the offense level . . . perhaps it’s a little bit

prosecution, Rivera, and the court that of poor draftsmanship. . . . Schedule A

Rivera’s leadership “role in the is . . . silent [] as . . . to any other upward

conspiracy warrants a four level increase, or downward adjustments.” Id. at 29(a)-

pursuant to [USSG] § 3B1.1(a).” 30(a).

Presentence Report at 10. Accordingly,

the report called for an Offense Level of Ruling orally from the bench at

39, while recognizing that “a 4+ the sentencing hearing, the district court

adjustment [] is contrary to the plea stated:

agreement, in that the plea agreement

specifies a total offense level of 35.” Id. the parties recognized at

at 19. On April 18, 2002, Rivera filed the time of their stipulation

objections in which he stated regarding that there may be other

the recommendation that the Offense Guidelines that have a

Level be set at 39: “such an application is bearing upon what the

repugnant to the defendant’s plea appropriate sentence

agreement.” App. at 132(a). should be, and that they

had not reached agreement

The United States’ attorney as to any other Guidelines,

replied to Rivera’s objections by filing a and . . . The parties do

letter brief with the district court. The reserve their rights to argue

letter argued that Rivera’s assertion mitigating or aggravating

“constitutes a clear misapplication of the circumstances that are not

Plea Agreement,” and that, regarding the covered by their

defendant’s role within the conspiracy, stipulations. . . . The

“the United States is not precluded from probation department has

arguing that the defendant is deserving of proposed that there be a

a role enhancement.” Id. at 143(a). four point enhancement for

Rivera did not file a response to the the defendant’s leadership

government’s letter. role in the conspiracy. The

parties’ stipulation is silent

On July 19, 2002, the district as to any adjustment for

court conducted the sentencing hearing. role. The parties’

3

stipulation does not applicable offense level.2 Our analysis of

constitute an agreement that argument proceeds in three parts.

that there shall be no role We first discuss the standard of review,

adjustment. then the merits of Rivera’s claim that the

United States breached the plea

But even if it is interpreted agreement, then the issue of remedy.

as at least a silent

agreement that the proper A. Standard of Review

Total Offense Level is 35

as Paragraph 5 of the The threshold question is the

stipulations recites, the applicable standard of review. We

Court nonetheless has to conclude that our review is de novo. The

look at the facts of the case

and to determine whether

the Sentencing Guidelines 2

Rivera raises five

indicate that any role

additional arguments: that (1) the district

adjustment, either upward

court erred in failing to hold that the

or downward, is

government breached its duty to consider

appropriate in this case.

all of Rivera’s cooperation under USSG

§ 5K1.1; (2) 21 U.S.C. §§ 841(B)(1)(A)-

Id. at 27(a)-28(a) (emphasis supplied).

(B) are facially unconstitutional with

respect to cocaine and cocaine base; (3)

The district court ultimately

USSG § 3B1.1(a) is unconstitutional

adopted the factual findings and

under Apprendi v. New Jersey, 530 U.S.

recommendations of the Presentence

466 (2000), because it increases a

Report and, accordingly, set the

mandatory minimum sentence upon

applicable Offense Level to 39 and

judicial fact-finding under a

sentenced Rivera to a 324 months term

preponderance of the evidence standard

of imprisonment and supervised release

of proof; (4) USSG § 3B1.1 is

of five years. This appeal followed.

unconstitutional under Apprendi and

Ring v. Arizona, 536 U.S. 584 (2002),

II.

because it authorizes punishment beyond

the facts established by the offense of

Rivera’s principal argument is that

conviction or stipulations; and (5) that

the United States’ allocution breached

applying 18 U.S.C. § 3742 (g)(2) on

the plea agreement by advocating to the

remand would violate the constitutional

sentencing judge that the four-level

separation of powers doctrine. We

enhancement recommended by the

resolve the appeal on the issue of breach

Presentence Report be added to the

of plea agreement and do not reach these

additional arguments.

4

United States argues that Rivera failed to The government argues that our

raise the issue below. It cites United statement in Queensborough is not

States v. Thornton, 306 F.3d 135, 137 controlling because we ultimately held

(3d Cir. 2002), for the proposition that that there was no error and because it is

Rivera’s claim for breach of plea not made clear in that decision whether

agreement by the United States is the defendant made any argument that

therefore subject to the “plain error the plain error standard of review should

standard of review on appeal.” Aple’s apply. This reading of Queensborough is

Br. at 19. However, Thornton involved a too narrow: in adopting a “plenary”

defendant’s claim that a district court framework of review, rather than the

violated the plea agreement by discretionary four-plus step plain error

considering evidence that the plea review of United States v. Olano, 507

agreement had stipulated would be U.S. 725 (1993), and its progeny, we did

excluded for the purposes of sentencing. not reserve the question of what standard

See 306 F.3d at 1357. In contrast, in a of review controlled. Nor did we qualify

case where the defendant, like Rivera, our statement that the applicable review

claimed breach of the plea agreement by was “plenary” in any way. Our law

the prosecution, and the defendant defines “plenary” as de novo. See Dixon

“concede[d] that he did not raise this Ticonderoga Co. v. Estate of O’Connor,

objection in the district court,” this court 248 F.3d 151, 161 (3d Cir. 2001).

has stated, without qualification, that Accordingly, even if Rivera’s objection

“whether the government violated the to the Presentence Report did not

terms of a plea agreement is a question of effectively raise the issue before the

law subject to plenary review.” United district court, 4 our review must be de

States v. Queensborough, 227 F.3d 149,

156 (3d Cir. 2000) (emphasis supplied)

(citing United States v. Moschahlaidis, See 227 F.3d at 156; see also United

868 F.2d 1357, 1360 (3d Cir. 1989)). States v. Peterson, 225 F.3d 1167, 1170

Accord, e.g., United States v. Lawlor, n.2 (10th Cir. 2000) (collecting cases on

168 F.3d 633, 636 (2d Cir. 1999); United either side of the circuit split).

States v. Courtois, 131 F.3d 937, 938 & 4

We note, parenthetically,

n.2 (10th Cir. 1997). 3

that the United States and the sentencing

judge were on notice from Rivera’s

objections, filed before the sentencing

3

As we observed in hearing, that Rivera viewed the adoption

Queensborough, a number of other courts of the probation officer’s recommended

of appeals have reviewed claims that the departure from the plea agreement’s

government breached a plea bargain not stipulated 35 Offense Level (or an

raised before the district court under a allocution or sentence adopting that

clearly erroneous or plain error standard. recommendation) as “repugnant to [the]

5

novo.5 Nolan-Cooper, 155 F.3d 221, 236 (3d

Cir. 1998). Third, the United States has

Well-established, additional an obligation to “‘adhere strictly to the

principles confirm the propriety of de terms of the bargain it strikes with

novo review of Rivera’s claim. First, defendants.’” Queensborough, 227 F.3d

“[b]reach of a plea agreement by a at 156 (quoting Moschahlaidis, 868 F.2d

prosecutor [] strikes at public confidence at 1361). “Because the defendant, by

in the fair administration of justice and, entering into the plea, surrenders a

in turn, the integrity of our criminal number of h[is] constitutional rights,

justice system in which a vast number of ‘courts are compelled to scrutinize

cases are resolved by plea agreement.” closely the promise made by the

Dunn, 247 F.3d at 463. Second, because government in order to determine

they relieve the government of the need whether it has been performed.’”

to prepare and conduct a trial, “[p]lea Nolan-Cooper, 155 F.3d at 236 (quoting

agreements, though arising in a criminal United States v. Hayes, 946 F.2d 230,

context, are analyzed under contract law 233 (3d Cir. 1991)). Fourth, in

standards.” United States v. determining whether the plea agreement

has been breached, we must determine

“whether the government’s conduct is

plea agreement.” Thus the judge must inconsistent with what was reasonably

have known, or is chargeable with understood by the defendant when

knowledge, that Rivera thought that a 39 entering the plea of guilty.” United

Offense Level was contrary to the plea States v. Badaracco, 954 F.2d 928, 939

agreement. The availability of de novo (3d Cir. 1992) (internal quotation marks

review on appeal regardless of whether omitted). Finally, “[i]n view of the

Rivera formally objected to the government’s tremendous bargaining

government’s advocacy makes it power, we will strictly construe the text

unnecessary for us to pursue the question against it” as the drafter of plea

of whether this indirect notice entitles agreements to the extent the agreement

Rivera to de novo review on independent is ambiguous. United States v. Baird,

grounds. 218 F.3d 221, 229 (3d Cir. 2000).

5 Accordingly, the United States may not

According to the

rely upon a ‘rigidly literal’ approach to

government, extending de novo review

the construction of the terms of the plea

“to areas outside the breach context

agreement.” Nolan-Cooper, 155 F.3d at

would eviscerate the contemporaneous

236 (citing Moschahlaidis, 868 F.2d at

objection requirement.” Aple’s Br. at 36.

1361).

However, our statement of the applicable

standard of review in Queensborough

was limited to the plea bargain context

and the important concerns it implicates.

6

B. Merits of Rivera’s Claim for The government advances five

Breach of Plea Bargain (closely related) arguments in favor of

the district court’s interpretation of the

Rivera’s argument that the plea agreement, none of which we find

government breached the plea agreement persuasive. The government’s most

is straightforward and persuasive. The forceful argument is that the provision in

plea agreement stated: “In accordance the plea agreement – that “except as

with the above, the applicable guidelines otherwise provided in this agreement,

total offense level is 35.” 6 The statement [the United States] reserves its right to

by the United States’ attorney that “we take any position with respect to the

stand by the probation officer’s appropriate sentence to be imposed on

conclusions,” App. at 29(a) – which Isaac [Rivera] by the sentencing judge” –

included the recommendation that the permitted the government to advocate a

Offense Level should be 39 – was role enhancement. However, this

inconsistent with the stipulation entered argument, based on the broadly worded

into by the United States that the exception, runs counter to, and is

applicable Offense Level would be 35. therefore trumped by, the specific

By, in effect, endorsing the Probation stipulation in the agreement. See Corbin

Office’s recommendation of an Offense on Contracts § 24.23 (revised ed. 1998)

Level of 39, the government breached its (“If the apparent consistency is between

agreement that the stipulated applicable a clause that is general and broadly

Offense Level would be 35.7 inclusive in nature and one that is more

limited and specific in its coverage, the

6

more specific should . . . be held to

Given this language, it is prevail over the more general term”); see

difficult to understand how the district also Restatement (Second) of Contracts §

court arrived at the conclusion that there 203. Because the Offense Level was

may have been a “silent agreement that specifically stipulated to, whereas the

the proper Total Offense level is 35.” government’s right to advocate a role

App. at 25(a) (emphasis supplied).

7

The possibility that the

district court might have adopted the doctrine that the government must adhere

probation officer’s findings and to its bargain in the plea agreement is so

recommendations even had the fundamental that even though the

government not urged their adoption is government’s breach is inadvertent and

not relevant to the question of breach. the breach probably did not influence the

To be entitled to remand, Rivera need judge in the sentence imposed, due

only show that the United States process and equity require that the

breached its agreement. See sentence be vacated.”) (internal

Nolan-Cooper, 155 F.3d at 236 (“the quotations omitted).

7

enhancement was not, the government’s Level at 16 or higher).

endorsement of an enhancement that

would raise the Offense Level above the Third, and relatedly, the

stipulated level contravened the plea government asserts that the position of

agreement. Moreover, to the extent there paragraph 5 in Schedule A, coming

is ambiguity caused by the “little bit of immediately after the paragraphs which

poor draftsmanship” conceded by the established the components of the

prosecutor, we must construe the calculation set forth in that paragraph,

agreement against the government as “suggests that ¶ 5 was intended to

drafter. See Baird, 218 F.3d at 229.8 explain and justify those . . . provisions,

rather than to bind a Total Offense Level

Second, the government argues [of] 35 for all purposes.” Aple’s Br. at

that an interpretation that binds it to the 40 (emphasis supplied). We agree, as

stipulation in Paragraph 5 renders mentioned, that the “Stipulations”

“superfluous” the language in Paragraph section’s function was, in part, to explain

5 that the stipulation to the Offense Level the calculation of the applicable Offense

being 35 was “in accordance with the Level. However, this does not make the

above.” Aple’s Br. at 40. Nor is this stipulation non-binding. To the extent

argument persuasive. The foregoing the United States, as the drafting party,

language may be fairly construed as desired to qualify the stipulation, it could

having independent, non-“superfluous” have included such language. But it did

meaning: it explains the steps by which not. And, again, to the extent that this

the stipulation reduced the Offense Level provision is ambiguous – and it is at least

from 38 to 35 (two-level reduction for ambiguous – we construe the provision

acceptance of responsibility; one level as effecting a binding obligation on the

reduction if the court set the Offense government. Cf. Baird, 218 F.3d at 229.

Next, argues the government, the

8 district court’s construction of the plea

Perhaps recognizing that

agreement should be upheld because

the provision at issue here created at least

“there is no controlling judicial authority

ambiguity on the question of the

. . . which has held, even at this time, that

government’s ability to, consistent with

language similar to that in this plea

the plea agreement, advocate for

agreement forbade the government from

enhancements not specified in the

advocating [] a role enhancement.”

agreement, the government concedes that

Aple’s Br. at 39. We reject this

“[t]he United States Attorney’s Office

argument. That the construction of this

has subsequently re-drafted its form

plea agreement’s stipulation language, or

cooperating plea agreement to omit any

language similar to it, has not apparently

stipulation regarding the Total Offense

been analyzed in a published opinion is

Level.” Aple’s Br. at 26 n.8.

8

no bar to our analysis of the agreement. enhancement. See App. at 131(a).

Significantly, the government identifies

no authority, controlling or otherwise, C. Remedy

that has sanctioned role advocacy where

the plea agreement was silent regarding The final issue concerns what

role enhancement and affirmatively remedy is appropriate. “When the

stipulated a particular Offense Level. government breaches a plea agreement,

the general rule is to remand the case to

Finally, the government urges us the district court for a determination

to draw an inference adverse to Rivera whether to grant specific performance or

from his failure to object before the to allow withdrawal of the plea.”

district court to the statement in the Nolan-Cooper, 155 F.3d at 241. “It is

government’s letter brief concerning an also the rule in this circuit that if specific

enhancement for role. The government performance is the applicable remedy,

cites language from a recent opinion by the defendant must be re-sentenced by a

a sister circuit court that the appellant’s different district judge than the one who

“failure to object at sentencing [that the presided over the now-vacated original

government breached the plea sentence.” Id.9 Consistent with this

agreement] is but further evidence that Circuit’s practice, the parties agree that if

his expectations of the government were we find, as we have, a breach of the plea

satisfied.” United States v. Werner, 317 agreement, the case should be remanded

F.3d 1168, 1170 (10th Cir. 2003). for resentencing before a different judge.

However, we are reluctant to draw any See Aplt’s Br. at 48; Aple’s Br. at 50

such inference from silence without n.20; Nolan-Cooper, 155 F.3d at 241 (in

more. Further, the government’s remanding for reassignment and

argument is not supported by the record. resentencing, explaining that “‘[s]pecific

Far from being satisfied, Rivera firmly performance is feasible and is a lesser

objected to the probation officer’s burden on the government and

recommendation of an Offense Level of defendant’”) (quoting United States v.

39 as being “repugnant to the Kurkuler, 918 F.2d 295, 302 (1st Cir.

defendant’s plea agreement.” Although 1990)). Accordingly, we will vacate the

not a challenge to the government’s sentence imposed and remand the case to

advocacy of a role enhancement, this the district court for resentencing before

objection, filed in the district court

subsequent to the execution of the plea

agreement, but over three months before 9

By directing resentencing

sentencing, suggests quite clearly that

by a different District Judge, we do not

Rivera did not accept the theory that the

suggest that the original District Judge

plea agreement authorized the

could not resentence appropriately. We

government to advocate for a role

are merely following our prior opinions.

9

a different judge.

III.

“It is very well to say that those

who deal with the Government should

turn square corners. But there is no

reason why the square corners should

constitute a one-way street.” Federal

Crop Ins. Corp. v. Merrill, 332 U.S. 380,

387-88 (1947) (Jackson, J., dissenting).

For the reasons set forth above, we hold

that the United States breached the plea

agreement, VACATE the sentence, and

REMAND to the district court for

reassignment to a different judge and

resentencing.

10